Abano & Backus (No 2)

Case [2025] FedCFamC1A 88

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Abano & Backus (No 2) [2025] FedCFamC1A 88

Appeal from: Backus & Abano (No 4) [2025] FedCFamC1F 30
Appeal number: NAA 72 of 2025
File number: PAC 6827 of 2020
Judgment of: ALDRIDGE, WILLIAMS & SCHONELL JJ
Date of judgment: 15 May 2025
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where leave is required to appeal from orders of the primary judge discharging a stay of de facto threshold proceedings pending finalisation of the appellant’s criminal trial – Where the appellant is charged with serious historical sexual offences of the respondent’s twin daughters – Consideration of the right to silence – The applicable appellate standard of review – Waiver of the privilege against self-incrimination – Where the primary judge failed to identify the correct test to revisit an interlocutory order – Where the primary judge acted inconsistently with the maintenance of the privilege against self-incrimination and was plainly wrong to conclude the appellant would not be prejudiced if the civil trial preceded the criminal trial – Leave to appeal granted – Appeal allowed – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 44, 114Q

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.05

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited:

Adam P Brown Male Fashion Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39

Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246; [1981] HCA 20

Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kuang & Kuang [2025] FedCFamC1A 31

Licul v Corney (1976) 180 CLR 213; [1976] HCA 6

McLachlan v Browne (No 9) [2019] NSWSC 10

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Woodgate (Trustee) v Northop Hall Pty Ltd (2016) 341 ALR 132; [2016] FCA 370
Number of paragraphs: 96
Date of hearing: 28 April 2025
Place: Sydney
Counsel for the Appellant: Mr Walker SC and Mr Alexander
Solicitor for the Appellant: Campbell Paton & Taylor
Counsel for the Respondent: Mr Williams SC and Mr Lloyd
Solicitor for the Respondent: Matthews Dooley & Gibson

ORDERS

NAA 72 of 2025
PAC 6827 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE…

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AGLC
Abano & Backus (No 2) [2025] FedCFamC1A 88
Case
[2025] FedCFamC1A 88
Decision Date

CaseChat Overview and Summary

The appeal in Abano & Backus (No 2) concerns the discharge of a stay of de facto threshold proceedings pending the finalisation of the appellant's criminal trial for serious historical sexual offences against the respondent's twin daughters. The case arose from a property adjustment application filed by the respondent in the Federal Circuit Court of Australia. The central issue was whether the parties were in a de facto relationship and, if so, the commencement and conclusion dates of this relationship. The appellant was charged with serious historical sexual assaults of the respondent's twin daughters, and he sought a stay of the civil proceedings until the conclusion of the criminal trial. The primary judge discharged the stay, leading to this appeal.

The legal issues in this appeal included whether leave to appeal was required and whether the primary judge's decision to discharge the stay was correct. Key considerations were the appellant's right to silence and the maintenance of the privilege against self-incrimination. The court had to determine if the primary judge applied the correct legal test and whether his decision was plainly wrong. The Full Court found that the primary judge failed to identify the correct test to revisit the interlocutory order and acted inconsistently with the maintenance of the privilege against self-incrimination.

The Full Court granted leave to appeal, finding that the primary judge was plainly wrong in concluding the appellant would not be prejudiced if the civil trial preceded the criminal trial. The court held that the primary judge's reasons were attended by sufficient doubt to warrant reconsideration. The appeal was allowed, and the orders discharging the stay were set aside, reinstating the stay until the criminal proceedings concluded. The Full Court ordered the respondent to pay the appellant's costs of the appeal in a fixed sum of $83,024.75, deferred until the conclusion of the de facto proceedings.

The court's final orders granted leave to appeal, allowed the appeal, set aside the previous orders discharging the stay, and reinstated the stay until the criminal proceedings concluded. The respondent was ordered to pay the appellant's costs of the appeal in a fixed sum, deferred until the conclusion of the de facto proceedings.

Orders

Orders of the court

NAA 72 of 2025

PAC 6827 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ABANO

Appellant

AND:

MS BACKUS

Respondent

ORDER MADE BY:

ALDRIDGE, WILLIAMS & SCHONELL JJ

DATE OF ORDER:

15 MAY 2025

THE COURT ORDERS THAT:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. Orders 1 to 18 made on 28 January 2025 are set aside and Orders 1, 3 and 4 made by Justice Henderson on 14 March 2022 are reinstated.

4. The respondent pay the appellant’s costs of the appeal fixed at $83,024.75, with payment to be deferred until the conclusion of the de facto proceedings in this Court.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons which follow, leave to appeal will be granted and the appeal will be allowed. BACKGROUND Following the breakdown of their relationship, on 17 December 2020 the respondent commenced proceedings in the Federal Circuit Court of Australia (as it then was) for adjustment of the parties’ property interests, pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”). The respondent contends she and the appellant were in a de facto relationship from late 2007 until November 2020. On 2 February 2021, the appellant filed a Response to the respondent’s Initiating Application. The appellant initially denied a de facto relationship, but subsequently conceded, per Notation C to orders made on 13 May 2021, he and the respondent were in a de facto relationship between 2009 and 2012. Whilst the appellant also agrees the parties were in a relationship between 2013 and 2020, he disputes the characterisation of that relationship as a de facto relationship under s 4AA of the Act. Consequently, the threshold issue to be determined in this Court is both the commencement and concluding dates of the parties’ de facto relationship. If the relationship concluded in 2012, as contended by the appellant, the respondent requires leave under s 44(6) of the Act. If it is found that the relationship concluded in November 2020, as contended by the respondent, her Initiating Application was filed within the prescribed statutory timeframe (s 44(5)(a)(i) of the Act) and leave is not required. Prior to their relationship, both parties have previously been married and have children from their prior relationships. Relevantly, the respondent has three children; a son, and twin daughters who were born in 2001 and are now aged 24. At a procedural hearing on 31 May 2021, the parties jointly requested the matter be listed for a threshold hearing. Nevertheless, orders were made to prepare the matter for trial, which was eventually listed for 26 April 2022. In mid-2021, the appellant was charged with serious historical sexual assaults of the respondent’s twin daughters. Those charges were to be heard in the District Court of New South Wales (“the criminal proceedings”). Based on the Crown Case Statement, the extant charged matters are alleged to have occurred between early 2013 and 2017 and took place at either or both of the appellant’s property at Town G, and the respondent’s home at Suburb EE. At [12] of the primary judge’s reasons, he sets out with particularity a summary of the charges against the appellant. At procedural hearings in September 2021, the parties’ legal representatives advised the Court the matter was ready to proceed to trial. On 20 and 21 September 2021, the appellant filed four affidavits, including his trial affidavit, and the respondent also filed documents in compliance with procedural orders. Prior to the scheduled trial date, on 31 January 2022 the appellant filed an Application in a Proceeding seeking a stay of the threshold proceedings pending finalisation of the criminal proceedings. The application was opposed by the respondent.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is merit in this ground.CONCLUSION AND COSTS As noted earlier, it is necessary to return to the issue of leave to appeal. For the reasons above, we are satisfied that the appellant has established a reasonable prospect of success; the reasons of the primary judge are attended by sufficient doubt to warrant reconsideration by the Full Court and that substantial injustice would result if leave were refused. The application for leave to appeal and the appeal will be allowed. Both senior counsel agreed if leave to appeal were granted, the respondent should pay the appellant’s costs, in accordance with his Schedule of Costs filed 22 April 2025, and if leave to appeal were refused, the appellant should pay the respondent’s costs, in accordance with her Schedule of Costs filed 22 April 2025. We will therefore order that the respondent pay the appellant’s costs of the appeal fixed at $83,024.75, with payment to be deferred until the conclusion of the de facto proceedings in this Court.

Ratio Decidendi

Legal Principle Established

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