Backus & Abano
[2022] FedCFamC1F 150
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Backus & Abano [2022] FedCFamC1F 150
File number(s): PAC 6827 of 2020 Judgment of: CAMPTON J Date of judgment: 25 February 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Ex tempore reasons for judgment – Application of test as to apprehended bias identified in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488 – Where the Judge appeared as counsel for the respondent at trial in s 79 proceedings against his former partner – Where the Court is satisfied that a fair minded lay observer may reasonably apprehend that the Judge may not bring an impartial and unprejudiced mind to the resolution of the issues in the case – Where the proceedings can be expeditiously and efficiently progressed in the docket of another Judge without prejudice, delay or additional cost – Recusal granted. Legislation: Family Law Act 1975 (Cth) 90RD, 90SM Cases cited: Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 25 February 2022 Place: Sydney Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Campbell Paton & Taylor Counsel for the Respondent: Mr Stewart Solicitor for the Respondent: Matthews Dooley & Gibson ORDERS
PAC 6827 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BACKUS
Applicant
AND: MR ABANO
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
25 FEBRUARY 2022
THE COURT ORDERS THAT:
1.
That the Application in a Proceeding filed on 5 January 2022 be listed before
Henderson J of this registry by Microsoft Teams format on 2 March 2022, the time of such listing to be determined by the registry and advised, noting that:
(a)A listing at 2.00 pm would be preferred, if available, by each of the applicant and respondent;
(b)That Mr Alexander, for the respondent, who is the applicant for the purposes of the Application in a Proceeding filed on 5 January 2022, estimates hearing time of approximately two hours.
2.I recuse myself from any further hearing of these proceedings.
3.
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 the pseudonym Backus & Abano has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Ms Backus (“the applicant”), by way of Initiating Application filed on
17 December 2020, commenced proceedings for financial adjustment pursuant to s 90SM of the Family Law Act1975 (Cth) (“the Act”) arising from her contention as to a statutory
de-facto relationship commencing in 2007 and terminating on 8 November 2020. The respondent, Mr Abano (“the respondent”), in his Response to an Initiating Application filed on 8 March 2021, puts into issue the fact of a statutory de-facto relationship and hence the jurisdiction of the Court to hear any prayer for relief for financial adjustment pursuant to s 90SM of the Act.
Trial directions were made on 31 May 2021 as to what is commonly identified as a threshold, or s 90RD determination. The hearing of that threshold application was allocated over four days before me to commence on 26 April 2022. My reading of the file would indicate that each of the parties appear to have filed their affidavit evidence in compliance with the trial directions, and have otherwise undertaken the work that was directed to the completed for the purposes of the threshold hearing.
The respondent by way of an Application in a Proceeding filed on 5 January 2022 (“the Application in a Proceeding”), applied to vacate the current threshold hearing listed to commence 26 April 2022. He also sought a stay of the prosecution of the litigation in this forum, pending determination of a number of serious criminal offences charged on 16 August 2021 relating to his conduct with the applicant’s daughters.
Counsel for the applicant sought leave, absent objection, to make an oral application today that I recuse myself from any further hearing of these proceedings in circumstances where I have ascertained that I appeared as counsel for the respondent in prior proceedings that were conducted during the period of the contented statutory de-facto relationship. Putting it in simple chronologies, my recollection is that I appeared at the private bar for the respondent in those prior s 79 proceedings from about 2010 through to 2012, or thereabouts, being within the period of the contended statutory de-facto relationship sought by way of finding by the applicant.
The respondent appropriately neither consents to nor opposes the application for recusal.
The test of apprehended bias does not require a determination as to the actual mind of a judge. Rather, as identified by counsel for the applicant, the question is whether a fair-minded and informed lay observer might reasonably apprehend that a judge might not bring an impartial or unprejudiced mind to the resolution of the issues in the case or, putting it another way, might have predetermined an issue such that he or she was not open to persuasion, rather than whether the particular judge did so. The relevant principles as to apprehended bias are identified in Johnson v Johnson (2000) 201 CLR 488 and Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”).
There is no suggestion of any waiver in this matter.
In the context of this litigation, as identified by counsel for the applicant, credit will form a significant role in determining a number of fundamental factual determinations in the s 90RD dispute.
I am mindful that a challenge as to apprehend bias is a challenge to the integrity of the administration of justice, and that the High Court has cautioned litigants from being unduly sensitive or suspicious. The High Court in Ebner identified two steps which must be found to be real and substantial: the first being identified as to the foundation for the application for recusal; the second being a relevant connection or nexus between what is asserted and the possibility of the apprehension of prejudgment.
In my view, it is important for litigants to have confidence in the conduct of a hearing of their dispute.
It is also important, especially in the circumstances of this case, for not only the s 90RD application to be determined expeditiously and efficiently, but the Application in a Proceeding be determined expeditiously and efficiently. I am satisfied, having regard to the directions that I have made, that the Application in a Proceeding can be determined by an alternate judge in the very near future, being 2 March 2022.
In all the circumstances, I find that it is open to conclude that a fair minded and informed lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution to the issues in this case. In the circumstances of the matter, I recuse myself from any further hearing in these proceedings.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 16 March 2022
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