Abassa & Shaffi
[2022] FedCFamC2F 656
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abassa & Shaffi [2022] FedCFamC2F 656
File number(s): PAC 2394 of 2021 Judgment of: JUDGE STREET Date of judgment: 5 May 2022 Catchwords: FAMILY LAW – PROPERTY – oral application for recusal –– matter part heard – adjournment likely – encouragement to resolve – observation as to extreme position in response – whether a fair minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits – oral application for recusal dismissed Legislation: Evidence Act 1995 (Cth) s 50
Family Law Act 1975 (Cth) pt VIII; s 79
Federal Circuit and Family Courtof Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) pt 10; r 10.09
Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Kennon & Kennon [1997] FamCA 27
Division: Division 2 Family Law Number of paragraphs: 36 Date of hearing: 5 May 2022 Place: Parramatta Counsel for the Applicant: Ms Coulton Solicitor for the Applicant: Saab Law Group Counsel for the Respondent: Mr Othen Solicitor for the Respondent: Lionheart Lawyers ORDERS
PAC 2394 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ABASSA
Applicant
AND: MR SHAFFI
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
5 MAY 2022
THE COURT ORDERS THAT:
1.The oral application for recusal is dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Abassa & Shaffi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET:
INTRODUCTION
These are property proceedings under pt VIII of the Family Law Act 1975 (Cth) (“the Act”) in respect of proceedings that were commenced on 5 May 2021. The parties were married in 2017 and it appears that the marriage broke down after three to four years. Overall, it is alleged that there was about a seven year relationship.
There are two relevant properties which are the subject of the proceedings. They are in the name of the Respondent Husband. The Applicant Wife seeks an order in circumstances where there are no children of the marriage, but alleges both financial and other contributions in respect of the property. The Applicant Wife seeks, effectively, a 25 per cent allocation of a small property estate in the order of about a million dollars, in respect of which that would reflect the sum of about $250,000.00. The superannuation of the parties was one which was almost even and no splitting order was sought by the Applicant Wife.
The Respondent Husband put on a response in which he simply identified the seeking of orders that, pursuant to s 79(2) of the Act, the application for a property adjustment order is dismissed and that the Applicant Wife pay the Respondent Husband’s costs of and incidental to the proceedings. A response that is filed in proceedings must meet the standard under r 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). It must have a reasonable prospect of success and the lawyers are required to bring to bear consideration of whether or not there is a reasonable prospect of success in respect of a response or an application in respect of the particular orders. These are provisions of which an informed fair minded lay observer would be aware.
BEFORE THE COURT
In this case, the matter was listed for final hearing today and the Court had before it, apart from a number of directions, two other final hearings. At the commencement of the proceedings, the Court identified that there were other matters and encouraged the parties to seek to see if they could explore resolution.
The matter came back before the Court and it was indicated to the Court that the Applicant Wife believed that the prospects of exploring resolution had not been exhausted. The Respondent Husband’s legal representative asserted the contrary.
The Court proceeded to make orders dealing with the evidentiary objections in order to commence upon the hearing in the matter. In respect of the objections on both sides, they were generally of a form of objections as to relevance, conclusion, submission or hearsay. They are in that regard of a nature that the Court is well equipped to deal with, as are the representatives, if they are material, by addressing the underlying issues. Where matters are patently ones that are hearsay, supported conclusion or submission the weight they would be given would be little.
The Court adopted an approach of ruling on the objections, first, those in respect of the Applicant Wife’s material. In that regard, it was identified that there were objections taken, not only of the kind just identified, but also one under s 50 of the Evidence Act 1995 (Cth) (“the Evidence Act”). When the Court made its orders, it made an express order permitting, under s 50 of the Evidence Act by direction, the adducing of the evidence in summary form.
There was a further objection raised in respect of a communication sent early on, which was a response to the proceedings, asserting it was privilege. The Court expressly identified it rejected that claim in respect of privilege, which was a different type of objection. The document which was the subject of the alleged privilege communication reflected no compromise so as to be protected by without prejudice privilege and reflected what the Court will call the same type of aggressive response as found in the response filed under pt 10 of the Rules, asserting a position that the proceedings should simply be dismissed.
In relation to family proceedings in respect of property, it is most important that care is given by practitioners in relation to the stance that is taken in filing Court documents. The Rules require the Response to have a reasonable prospect of success. It is not a case of simply giving effect to client’s instructions. Legal practitioners are required to carefully evaluate whether the response is one which has a reasonable prospect of success.
After ruling on the evidence, it was then identified that there was another affidavit that had been filed by the Applicant Wife, which was sought to be the subject of objection. It appeared that no earlier notice had been given to the Respondent Husband’s counsel of the intention to rely upon the same. The Court enquired of the Respondent Husband’s counsel whether the objections were likely to be of the same nature that the Court had just deliberated upon and rejected. The Court was informed that was the position. Accordingly, the Court then admitted that affidavit into evidence and no other objections were further pressed.
The Court then ruled on the objections that were taken in in respect of the Respondent Husband’s case, and the objections raised by the Applicant Wife being of a similar kind as identified were all rejected being of the same kind of conclusion, submission, relevance and hearsay. The materiality of any of this evidence that has been allowed can readily deal with in the course of the hearing. Counsel are in a position in respect of any material matter to explore it in relation to their case, if they regard the matter as of significance in cross-examination.
The Court then turned to raise whether or not the Applicant Wife was advancing a Kennon & Kennon [1997] FamCA 27 (“Kennon”) case. In that regard, the Court was informed that the Applicant Wife was doing so. There is a reference in the Applicant Wife’s case outline to allegations of physical, emotional and financial family violence. There were controlling conduct allegations identified in the affidavit material that was admitted into evidence.
At this stage, evidence having been adduced, the Court raised that there appeared to be some evidence in relation to the allegation of an impairment to make contributions and of an attempt of suicide and some photographic evidence, being the alleged consequences of family violence.
The Court then raised that it appeared that there was not present any evidence in relation to a psychologist who the Applicant Wife claimed to have been seeing. The Court made no observation as to whether it would permit any suggested endeavour by the Applicant Wife to adduce evidence from the psychologist, but rather was identifying, for the benefit of the parties, the potential issues that might arise in circumstances where the attempts to resolve the matter had not been exhausted, given the response by the Applicant Wife.
The Court was then informed that it appeared that the Applicant Wife had undergone an operation approximately two weeks earlier in relation to her heart. Counsel for the Applicant Wife indicated a concern as to whether or not she would be able to proceed with the hearing in the sense of giving evidence and being cross-examined, and expressed the view that the Applicant Wife was not in such a fit state.
The Court regularly places great weight on what is said by legal practitioners to the Court. Because of their duty to the Court, it is not necessary, ordinarily, to go behind many assertions made by counsel that assists in the efficient running of proceedings.
The Court then raised the possibility that the matter may have to be adjourned and that the Court would have to consider what directions might need to be made. Following this, Mr Othen, counsel on behalf of the Respondent Husband said that he might wish to make an application for disqualification. Mr Othen said that such an application might refer to observations that were made by the Court as to the position identified in the response being an extreme position, the rulings on the affidavit material and the foreshadowing of an adjournment in circumstances where, beyond the observation of counsel, no evidence has been put before the Court and in encouraging further exploration of resolution when counsel for the respond husband asserted the prospects had been exhausted..
The Court interrupted Mr Othen and said that it was not going to entertain what might be said and that, if there was an application to be made, it must be made. At that stage, Mr Othen did not make any application for recusal. The Court, with other matters still before it, stood the matter down with the expectation that the parties engage in further negotiations.
At 3:00pm, the Court was informed that there had been further negotiations, but they had not yet become fruitful. The Court was asked to stand the matter down to 3:30pm. The Court did so.
THE ORAL APPLICATION FOR RECUSAL
At 3:30pm, Mr Othen indicated that he anticipated wishing to make an application for recusal. The Court listed that application for 4:00pm today.
At the commencement of that application, the Court asked Mr Othen to identify the conduct on which he relied. Mr Othen commenced by saying he wished to take the Court to the legal principles. The Court again specifically identified for Mr Othen that it wished him to identify the conduct. The initial response by Mr Othen was one of a broad approach as to what had earlier occurred. The Court pressed for specifity in respect of the conduct and Mr Othen to referred to the rulings by the Court upon the evidence and in relation to the parties being encouraged to seek to resolve the matter in circumstances where his view had been expressed that it had been exhausted.
There were also unnecessary remarks made as to alleged errors by the Court in relation to the duration of the marriage and a reference to seven years. The relationship appears to have commenced over a period of seven years. The Court does not accept that there was any error in that regard, but it was of no moment and it was gratuitous to raise it if not relied upon as conduct warranting recusal.
There was a further reference to the assets in the estate and the balance sheet. The Court did refer to an amount that reflected a misunderstanding of the amount in issue in terms of the net assets. That was corrected at the time. The misunderstanding was irrelevant to and was not said to support the recusal application.
The conduct then appeared to be formulated as, first, encouraging the parties to resolve the matter when one party had said that they had exhausted it. The other counsel took a different view. The potential costs consequences of an adjournment if granted was of itself a legitimate matter to warrant further encouragement to explore resolution and does not identify any reasonable or logical basis as to why the Court would not decide the now part heard matter on the merits. Given these circumstances and that there are Counsel representing both parties, a fair minded lay observer might not reasonably apprehend that the Court might not bring an independent impartial mind to the determination of the matter on its merits by reason of continuing to encourage the parties to explore resolution when one party said they have not been exhausted.
The next ground for disqualification was the ruling in respect of objections which was characterised, as being holus-bolus. That ground failed to recognise that the Court did turn its mind specifically to all the objections that had been raised, including making a direction in respect of the s 50 of the Evidence Act objection that had been raised and expressly referring to the alleged privileged material, that patently was not privileged. The conduct in respect of the rulings was in substance the same in respect of both parties. This does not identify any reasonable or logical basis why the Court would not determine the matter on the merits. The evidentiary rulings are not conduct that meet the double might text in respect of a fair minded lay observer.
In the course of referring to encouraging the parties to explore a resolution after the ruling of evidence, the Court did identify that the position taken in the response seemed to be extreme. After the Court had admitted the evidentiary material, in the context of encouraging resolution where an adjournment is likely to be granted, the Court observed that the proposition that there would be no order is unlikely, does not reflect an evaluation of the issues likely to arise under s79 and that the Court is likely to find that there will be an order under s79. These robust preliminary views do not reflect predetermination of the matter but rather focusing the parties on the real issues and encouragement of resolution where an adjournment appeared likely. The Court expressly referred to the need for the parties to explore meaningfully what the contributions are and the pre-existing assets of the husband. The Court observed that somewhere between the extreme position identified in the response by the husband and the position identified in the applicant’s case outline there is a realistic level at which the matter may well be capable of being resolved.
The response can be characterised as a response that was, on its face, one that did not meet the requirements of r 10.09 of the Rules, in that it is a response that did not have a reasonable prospect of success. The response reflected, what the Court will call, an aggressive stance in relation to the proceedings, rather than a close, careful and proper legal analysis by lawyers as to what has a reasonable prospect of success, in circumstances where the marriage has lasted some three years, where there have been allegations of contribution, financial and emotional, and where there is raised a potential issue of Kennon. Whilst the observations of the Court may be robust language taken in context it does not reflect a pre-determination of the proceedings but rather a robust encouragement to meaningfully explore settlement negotiations.
The Court takes into account that a fair minded lay observer would be aware that the Court must decide, first, in relation to the four-part process, the existence of assets in terms of the present legal title of the parties and then turn to consider whether it is appropriate to alter that existing state of affairs by any order under s 79(2) of the Act. In relationships of short duration, of a matter of weeks and the like, it may well be that the type of response that was put on this case and the making of no order under s 79 might not be characterised as an extreme position. Given the duration of the marriage in this case, in robust terms a dismissal of the application was an extreme position. A fair minded lay observer would be aware that the Court, having embarked on hearing the evidence and making rulings, had evidence that was before it in making observations so as to encourage further exploration of resolution. That the Court expressed tentative views that this was an extreme position and as to likelihood of order under s79 are conduct which a fair minded lay observer would be aware that a response should have a reasonable prospect of success and that a dismissal of the application for property orders is a position reflecting no compromise. A fair minded lay observer would be aware that if contrary to the response the application was not to be dismissed that there would be an order made under s79 and there would be issues to be determined as to what order should be made under s 79. The observations made by the Court whilst robust do not provide a reasonable or logical basis to identify what the Court would not decide the matter on the merits and according to law. It is not conduct in respect of an informed fair minded lay observer that meets the double might test.
Ordinarily, parties look at trying to resolve matters by looking at their reasonably best-case scenario and reasonably worst case scenario of which the informed lay observer would be aware. in robust terms the proposition that the proceedings would be dismissed was not a reasonably best-case scenario; it was an extreme position of no compromise. Further an informed lay observer would be aware that this response was not one that reflected a proper response in accordance with the Rules in the sense of having a reasonable prospect of success in this case given the duration and issues identified above. The Court’s reference to there being an extreme position in response and a likelihood of an order under s 79 of the Act is robust language but still tentative views. A fair minded lay observer would be aware that the Court has a duty to resolve the real issues in dispute, to ensure that it is only reasonably arguable issues that occupy Court time and that the Court’s rules are complied with. The observations by the Court as to extreme position and likelihood of a s 79 order in the context of encouraging compromise is not conduct that means there is identified a reasonable or logical basis why the part heard Court would not determine the matter on its merits and according to law.
The Court used that robust language in the context of identifying, again, an encouragement for the parties to try and resolve the matter. Under s 190 of the Federal Circuit and Family Courtof Australia Act 2021 (Cth) (“the FCFCOA Act”), the Court has an obligation to ensure that the prosecution of matters are conducted efficiently and justly, as well as taking into account the impact of proceedings on the resources of the Court. A consequence of s 190 of the FCFCOA Act is that the Court takes into account the benefits and prospects of parties settling and seeks to encourage the parties to do so. A fair minded lay observer would be aware of those rules and the encouragement in that regard.
The robust language was used in the context of both parties being represented and is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits.
The next ground relied upon by Mr Othen appears to be an assertion of prejudging in the ruling on the earlier affidavit of the Applicant Wife, that had not been notified to Counsel for the Respondent Husband in a timely manner that it would be relied upon. As is apparent, the Court raised with Counsel whether the objections would be of the same kind as had been identified earlier in the Court’s ruling. The Court was informed that they were.
In those circumstances, it would have been an empty exercise to engage in repeating objections of the same kind that the Court had conveyed it was likely to allow the material into evidence. Further no objections were not sought to be further pressed by Mr Othen, although he had opportunity to do so. The Court admitted into evidence the affidavit in circumstances where Mr Othen had foreshadowed the objections would be of the same kind and in respect of which the Court indicated it would adopt the same rulings as had been applied to both sides. The similar rulings on the new affidavit do not identify any reasonable or logical basis why the Court would not determine the matter on the merits. The admission into evidence of the belated affidavit and adoption of similar rulings are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Court might not bring an independent impartial mind to the determination of the matter on its merits.
Mr Othen did not seek to further press the issue that he had raised earlier about the reference to the condition of the Applicant Wife and accepting what counsel said without evidence or that the Court might grant an adjournment. A fair minded lay observer would be aware that Court’s place considerable weight on what is said by legal practitioners who have a duty to the Court and that hearings must be procedurally fair so that if one person is assessed by counsel as being potentially unfit to give evidence this is a matter likely to warrant and adjournment. Foreshadowing an adjournment in these circumstances does not identify any reasonable or logical basis as to why the Court would not determine the matter on its merits. Suffice to say that this is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits.
There was also a submission advanced by counsel for the Respondent Husband that the Court had engaged in encouraging the putting on of further evidence by a psychologist. That is not a position that the Court regards as a fair characterisation of the exchange that took place. It was one identifying a potential problem faced by the Applicant in relation to the issue that was being raised in terms of impact. It was not one where the Court was doing more than, on the ruling that had been identified, clarifying issues. The Court did not foreshadow a favourable or unfavourable outcome on any attempt to adduce further evidence. A fair minded lay observer would appreciate that the Court was identifying issues and was still trying to encourage resolution. The reference to a problem in respect of the want of psychological evidence does not identify a reasonable or logical basis as to why the Court would not decide the proceedings on their merits. In these circumstances the reference to a possible evidentiary deficiency is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Court might not bring an independent impartial mind to the determination of the matter on its merits.
In combination, the grounds of alleged conduct referred to are not grounds that identify a logical basis that the Court would determine the matter otherwise than on its merits with an independent and impartial mind. The conduct in combination, applying the test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination on the merits. The conduct identified does not support the recusal application and no case of apprehended bias is made out.
Accordingly, the oral application for recusal is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 May 2022. Associate:
Dated: 30 May 2022
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