Backus & Abano (No 3)
[2024] FedCFamC1F 904
•18 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Backus & Abano (No 3) [2024] FedCFamC1F 904
File number(s): PAC 6827 of 2020 Judgment of: ANDERSON J Date of judgment: 18 December 2024 Catchwords: FAMILY LAW –PRACTICE AND PROCEDURE – APPLICATION FOR REVIEW - Where a Senior Judicial Registrar made an order permitting the respondent to rely upon, produce and/or tender affidavit material and exhibit books prepared by the applicant in Part VIIIAB proceedings to the District Court of New South Wales – Where a Senior Judicial Registrar made an order permitting the applicant to release to the Prosecutor in the District Court proceedings affidavit material and an exhibit book prepared by the respondent in Part VIIIAB proceedings -Where the respondent makes an application to review a decision made by a Senior Judicial Registrar made eighteen months earlier Legislation: Family Law Act 1975 (Cth) s 44
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14, 15
Cases cited: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 18 December 2024 Place: Parramatta Counsel for the Applicant: Mr Lloyd Solicitor for the Applicant: Matthews Dooley & Gibson Counsel for the Respondent: Mr Alexander Solicitor for the Respondent: Campbell Paton & Taylor 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:
ANDERSON J
DATE OF ORDER:
18 DECEMBER 2024
THE COURT ORDERS THAT:
1.Paragraphs 4, 5 and 6 of the Response to an Application in a Proceeding filed on 6 December 2024 be dismissed.
2.The applicant’s costs of and incidental to the Application in a Proceeding filed 29 November 2024, including attendance at court on 18 December 2024, be reserved to trial such costs certified fit for counsel.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Backus & Abano has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTANDERSON J:
INTRODUCTION
By Initiating Application filed on 18 December 2020, the applicant sought orders for property settlement and maintenance pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”). In her affidavit filed in support of the application, the Applicant deposed to commencing a relationship in 2007. She says at paragraph 33 of the affidavit filed in support of the application that on 7 December 2020, her solicitor received a letter from the respondent’s solicitor claiming that the parties were not in a de facto relationship as so asserted.
On 8 March 2021, the respondent filed a Response to Initiating Application simply seeking orders that the Initiating Application be dismissed and that the applicant pay his costs. In support of that application, the respondent at paragraph 5 denied that he had been in a de facto relationship with the applicant. It was later conceded that the parties were in a de facto relationship between 2009 and 2012. If the respondent’s position is correct, then the immediate issue is whether the Court has jurisdiction to hear and determine the substantive application. Relevantly, the respondent says that the parties’ relationship broke down in 2012 and that this being so, any application for an extension of time under s 44(6) of the Act ought to be declined.
In addition to the proceedings brought under Part VIIIAB of the Act, the respondent is involved in two sets of criminal proceedings. Firstly, the respondent is facing trial in the District Court with respect to Charges brought against him by the Crown. The charges relate to alleged offending of the respondent with respect to the applicant’s twin daughters who are now adults. A trial in respect of the charges commenced in mid-2024, however, in mid-2024, the Crown advised the court that there would be no further proceeding of any Indictment relating to one daughter. This being so, the respondent now faces several offences involving one of the applicant’s daughters. It is alleged that during the period early 2013 to 2020, the respondent sexually assaulted the applicant’s daughter and/or indecently exposed himself to her. A trial in respect of these charges is listed to commence late 2025.
In addition to the charges involving the applicant’s daughter, the respondent has been charged with several domestic violence offences involving the applicant. The proceedings were set down for five days to commence late 2024. I am told by way of an affidavit in the name of the respondent’s solicitor, that the parties made a joint application to vacate the hearing on the basis that inter alia the Local Court hearing should not proceed until the District Court trial had concluded.
In terms of the passage of the Part VIIIAB proceedings in this court, the respondent filed an Application in a Proceeding on 31 January 2022 seeking an order that the proceedings be stayed pending the outcome of the District Court proceedings. The application was heard by The Honourable Justice Henderson on 2 March 2022. Her Honour delivered a Judgment and made orders on 14 March 2022 to the effect that the Part VIIIAB proceedings be stayed pending the finalisation of the District Court proceedings, which finalisation did not require there be a verdict or sentence passed.
On 26 November 2024, the proceedings were listed before me for the purposes of a Case Management Hearing. The hearing was listed in circumstances where the matter had several weeks earlier been listed before the Honourable Justice Riethmuller for the purpose of making enquiry about whether the Part VIIIAB proceedings could be listed for Trial.
As a consequence of orders made by me on 26 November 2024, the applicant filed an Application in a Proceeding seeking orders that paragraphs 1, 2, 3 and 4 of the Orders made by The Honourable Justice Henderson be discharged and that the proceedings commenced by the applicant on 18 December 2020 be listed for a hearing “on the issue of the duration of the relationship and leave to commence out of time, if required, on the earliest possible date”. Whilst the application refers to an interim hearing, the Court and counsel obviously understand that the duration of the relationship, and whether or not the applicant ought to be granted leave to proceed out of time, is to be bifurcated from the question of whether there ought to be an adjustment of the parties’ financial interests pursuant to Part VIIIAB of the Act. In this regard, it is the joint position of the parties as advanced by their counsel that the hearing is not ready to proceed on the ultimate question.
APPLICATION FOR REVIEW
On 6 December 2024, the respondent filed a Response to an Application in a Proceeding. The Response sought several orders. First, the respondent sought an order that the applicant’s Application in a Proceeding be dismissed with costs. Secondly, the respondent sought an extension of time to review Orders 3 and 4 of Orders made by a Senior Judicial Registrar on 17 May 2023. I now turn to that application.
My review of the Court file identifies that on 16 May 2023, the respondent sought an order that he be granted permission to rely upon, produce and/or tender documents filed and/or produced in this proceeding in the District Court of New South Wales as part of the proceedings involving the applicant’s children. In essence, the respondent was seeking to be relieved from the Rule in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (“Harman”). That rule precludes a litigant from making collateral use of documents obtained through the court’s compulsory processes. Importantly, the Rule in Harman constitutes an obligation to the Court and if the rule is breached, then a party is in contempt. The rule as it applies in Australia is as follows:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.[1]
[1] Hearne v Street (2008) 235 CLR 125 at [96].
In response to the Application in a Proceeding filed on 16 May 2023, the applicant in the substantive proceedings prepared a Response to an Application in a Proceeding. It appears that the Response was not filed in circumstances where the competing interlocutory applications were listed before a Senior Judicial Registrar on 17 May 2023 at which time there was a contested hearing. The Response to an Application in a Proceeding was with the consent of counsel appearing before me today, marked as Exhibit R3. By that document, the applicant in the substantive proceedings sought orders permitting the parties to rely upon, produce and/or tender various Affidavits and Exhibit Books filed by the respondent in these proceedings. In total, the applicant sought permission to release to the New South Wales Office of the Director of Public Prosecutions (“ODPP”) with respect to the District Court proceedings ten categories of documents.
The application filed by the applicant was only partially successful in that on 17 May 2023, the Senior Judicial Registrar granted the legal representative of the applicant permission to provide three categories of documents only to the Prosecutor in the District Court proceedings. The Orders made on 17 May 2023 are set out below:
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Leave is granted to the parties’ legal representatives to rely upon, produce and/or tender documents filed and/or produced in these family law proceedings in the District Court of New South Wales as part of proceeding […]. (“District Court Proceedings”).
2.The documents to which Order 1 applies be limited to:
(a)Affidavit of [Ms Backus] dated 17 December 2020;
(b)Affidavit of [Ms Backus] dated 3 August 2021;
(c)Affidavit of [Ms Backus] dated 2 September 2021;
(d)Affidavit of [Ms Backus] dated 18 February 2022;
(e)Exhibit Book of [Ms Backus] dated 17 December 2020;
(f)Affidavit of [Mr V] dated 21 July 2021;
(g)Affidavit of [Ms AA] dated 22 July 2021;
(h)Affidavit of [Ms BB] dated 5 August 2021;
(i)Affidavit of [Ms CC] dated 27 July 2021; and
(j)Affidavit of [Ms DD] dated 22 July 2021.
3.In the event that the Prosecutor in the District Court Proceedings requests access to the following documents:
(a) Affidavit of [Mr Abano] dated 2 February 2021;
(b) Affidavit of [Mr Abano] dated 19 September 2021;
(c)Exhibit Book of [Mr Abano] referred to as Exhibit [MRA] dated 19 September 2021;
The legal representative for the Wife is permitted to provide these documents, and the Leave referred to in Order 1 applies.
4.In relation to any requests referred to in Order 3, the Prosecutor shall copy such requests to both parties’ legal representatives.
5.The legal representative for the Husband shall provide a copy of these Orders to the Prosecutor in the District Court Proceedings.
The wording of Order 3 and 4 of the Order made on 17 May 2023 is curious. Counsel for the parties were unable to advise me why Order 3 was drafted in such a peculiar manner or whether submissions were made as to the manner in which the paragraph ought to be drafted. I do not have the benefit of a transcript of the proceedings that day. Nevertheless, it is clear from the final sentence of Order 3, that it was the legal representative of the applicant who was being provided permission to rely upon, produce and/or tender documents filed and/or produced in these family law proceedings in the District Court proceedings. According to the terms of Order 3, the permission was only granted if the Prosecutor in the District Court proceedings requested access to the three categories of documents. I am advised by counsel for the respondent that the Prosecutor has never asked for copies of the documents referred to at Order 3.
I return now to the hearing before me on 26 November 2024. On that occasion, the applicant’s counsel made oral submissions to the effect that although the respondent sought the orders made by Justice Henderson on 14 March 2022, the respondent had acted in a manner, which either expressly or impliedly waived his privilege against self-incrimination in the District Court proceedings such that the stay of the proceedings under Part VIIIAB of the Act is no longer necessary and should be discharged. The applicant’s counsel relies upon several bases in support of his submissions. At the hearing on 26 November 2024, the applicant’s counsel submitted that the respondent had not previously sought to review the orders made on 17 May 2023, which permitted the prosecutor to request and access the respondent’s affidavits filed in the Part VIIIAB proceedings. In essence, the applicant’s counsel submitted eloquently that the respondent’s failure to file an application for a review of the Orders made by the Senior Judicial Registrar on 17 May 2023 was inconsistent with the maintenance of privilege.
On 6 December 2024, the respondent filed a Response to Application in a Proceeding. At paragraphs 4 to 6 of that response, the Respondent sought the following orders:
4.Extend time to the Respondent to seek a review of Orders 3 & 4 of the Interim Orders made by Senior Judicial Registrar Tran on 17 May 2023.
5.Grant leave to the Respondent to file a review application in the form annexed to this response and direct that the application be returnable instanter.
6.Upon Review of Orders 3 & 4 of the Interim Orders made by Senior Judicial Registrar Tran on 17 May 2023, set those orders aside.
The proposed application for review annexed to the Response to Application in a Proceeding simply sought orders at Part D to the effect that Orders 3 and 4 of the Interim Orders made by a Senior Judicial Registrar on 17 May 2023 be set aside.
THE RULES
Rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) sets out that the power of the court on review from an order of a judicial registrar is to be exercised by way of an original hearing.
Rule 14.05 of the Rules prescribes that a party may file an Application for Review within 21 days of the date of the order. That time limitation expired on 7 June 2023. It is accordingly proposed by the respondent that the Application for Review be filed eighteen months out of time. This being so, it is necessary for the respondent to seek leave to proceed with any review application. The applicant opposes such leave being granted.
The Court has a general power to grant an extension of time prescribed by the Rules within which to take a particular step,[2] including extending time to permit the later filing of an Application for Review of an exercise of delegated judicial power. The power to grant an extension of time maybe enlivened whether or not the time fixed by the rule or procedural order has passed.[3]
[2] Rule 15.06(1).
[3] Rule 15.06(2).
The relevant principles as to an exercise of the discretion to extend time is identified in the well-known statement of McHugh J in Gallo v Dawson (1990) 93 ALR 479 (“Gallo v Dawson”) where his Honour said at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
(Citations omitted)
The issue I must determine is whether the strict application of the Rules would constitute an injustice.
In support of the Application for Review, the respondent relied upon two affidavits, namely, an Affidavit in the name of his solicitor filed on 6 December 2024 and an Affidavit in the name of the solicitor retained by the respondent for the purposes of the District Court proceedings filed on 6 December 2024. In addition, the respondent relied on a Tender Bundle comprising ten pages[4] and an email authored by the barrister who represented the respondent on 17 May 2023.[5]
[4] Exhibit R2.
[5] Exhibit R1.
During the course of his submissions, Mr Alexander of counsel submitted that Order 3 of the Order made by the Senior Judicial Registrar on 17 May 2023 was plainly wrong. In support of that submission, Mr Alexander argued that the orders were made in favour of a non-party, namely, the Prosecutor in the District Court proceedings. At paragraph 32 of his Written Submissions filed on 13 December 2024, the respondent’s counsel said as follows:
The prosecutor is not a party to the Family Law Proceedings and should not have been the subject of orders without first making an application to the Court. It was an improper order that should not have been made. Had the prosecutor made that application, objection would be taken by the respondent in the District Court Proceedings.
Whilst I have already indicated that the wording of Order 3 is peculiar, I do not agree that this makes the Order “wrong” as submitted. Indeed, and quite properly, the Order identifies that it is the legal representative for the applicant who is permitted to provide documents to the Prosecutor in the District Court proceedings. That is, it is the applicant’s solicitor who was being relieved from the Rule in Harman. Such an order is consistent with the terms of the Response to an Application in a Proceeding filed by the applicant and identified at Exhibit R3. Further, it is clear that it was not the prosecutor making the application but the applicant. Accordingly, the contentions advanced by the respondent’s counsel at paragraph 32 of his Written Submission fail.
Next, the respondent’s counsel highlights by reference to page 6 of Exhibit R2 that the Crown does not consent to or oppose the orders sought by the proposed Application for Review. That might be so, but it is irrelevant to my determination of the merit of the application.
Next, and in support of his submission, Mr Alexander argued that the respondent would suffer an injustice if the Orders made by the Senior Judicial Registrar are not set aside because to leave the Orders in place would be to imperil the respondent’s defence in the District Court proceedings. The first observation I make with respect to that submission is that the Crown has hitherto failed to make any request pursuant to the terms of Order 3 of the Order made on 17 May 2023. This is despite the concession made by the respondent’s criminal solicitor as found at paragraph 24 of his Affidavit that the Office of the Director of Public Prosecutions is aware of the orders made by the Senior Judicial Registrar and was made aware of them at the time of the hearing in May 2023. There is no suggestion that the Director’s office it is likely to request the material. The next observation I make is that it is apparent from the affidavit filed by the respondent’s criminal solicitor that the respondent would raise objection if any of the documents referred to at Order 3 of the Order made on 17 May 2023 are sought to be tendered at trial.[6] Such a step may ensure that the respondent’s defence in the District Court proceeding is not imperilled.
[6] Affidavit of the Respondent’s criminal solicitor filed on 6 December 2024, paragraph 25.
Next, I have reviewed the Affidavit filed on 2 February 2021 by the respondent. It is a 19-paragraph affidavit comprising two substantive pages. On my reading of the document, I do not consider that any prejudice would ensue if the Director’s office received it in any event. It is a document o little moment and, in my view, it would do nothing to assist the Director’s office to determine the elements of the alleged offences. The affidavit filed on 19 September 2021 is a more substantive document. However, it is again difficult to determine how the content of that document might assist the Director’s office.
When determining the application to proceed with the Application for Review out of time, I am also entitled to consider the conduct of the parties and the nature of the litigation. I am not persuaded that the application before me is bona fide. When making that comment, I have nothing but the highest regard for Mr Alexander and the way in which he has conducted himself. However, and given the chronology referred to above, the application for leave to proceed with a review application could only have been made as a consequence of a discussion between Bench and Bar and submissions made by the applicant’s counsel on 26 November 2024. That is, it is my view that the application was only made to deprive the applicant of one limb of her argument, namely, that the respondent has by his actions acted in a manner, which is inconsistent with the maintenance of a privilege against self-incrimination.
I have had regard to the Affidavit in the name of the solicitor engaged by the respondent for the purposes of these proceedings but particularly to paragraphs 29 and 30 of that document. At paragraph 30, the respondent’s solicitor says as follows:
I was not aware of the argument that Orders 3 and 4 might undercut the Stay Orders made on 14 March 2022 and the Respondent's right of silence until this matter was raised by the Court on 26 November 2024.
It may be the case that the respondent’s solicitor herself was not aware of the Orders made on 17 May 2023 but certainly, counsel engaged by the respondent for the criminal proceedings was aware and he alludes to such knowledge at paragraph 2 of an email sent by him to the Director’s office on 17 May 2023.[7] In short, I am not persuaded that there is a genuine reason why the application for review was not filed in the timeframe contemplated by the Rules.
[7] Exhibit R1.
On balance, I am not satisfied that to refuse the application would constitute an injustice. The order has been on foot for 18 months.
I dismiss paragraphs 4 to 6 (inclusive) of the Response to an Application in a Proceeding filed on 6 December 2024.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 18 December 2024
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