Backus & Abano (No 4)

Case [2025] FedCFamC1F 30

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Backus & Abano (No 4) [2025] FedCFamC1F 30

File number(s): PAC 6827 of 2020
Judgment of: ANDERSON J
Date of judgment: 28 January 2025
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay of Proceedings – Application by the applicant to discharge orders for a Stay of Proceedings made in March 2022 – Application by the respondent to maintain the stay pending the finalisation of criminal proceedings against him in the District Court of New South Wales – Where the respondent is charged with offences against the applicant’s daughter – Where the respondent asserts that a trial in the family law proceedings will cause him to suffer sever prejudice – Where the applicant asserts that the respondent has acted in a manner inconsistent with the maintenance of the privilege against self-incrimination – Where the Court finds that the respondent has acted in a manner inconsistent with the maintenance of the privilege against self-incrimination – Where a further stay of the family law proceedings would occasion prejudice to the applicant – Where prejudice arises in circumstances where the proceedings were initiated in December 2020 – Where prejudice arises in circumstances where the applicant has been unable to prosecute her application for in excess of four years
Legislation:

Criminal Code Act 1995 (Cth) ss 11.1, 400.4

Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) ss 4AA, 44, 55, 90SM

Proceeds of Crime Act 2002 (Cth)

Sex Discrimination Act 1984 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14

Sex Work Act 1994 (Vic) s 10

Cases cited:

Accident Insurance Mutual Holdings Limited v McFadden & anor (1993) 31 NSWLR 412

Australian Securities and Investments Commission v One Tech Media Limited (2017) 122 ACSR 572; [2017] FCA 1080
Backus & Abano (No 2) [2022] FedCFamC1F 125
Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97
Ewin v Vergara (No 2) (2012) 209 FCR 288; [2012] FCA 1518
Griffin v Pantzer (2004) 137 FCR 209; [2004] FCAFC 113
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Lee & anor v New South Wales Crime Commission (2013) 302 ALR 363; [2013] HCA 39
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
McMahon v Gould (1982) 7 ACLR 202
Petty & Maiden v R (1991) 173 CLR 95; [1991] HCA 34
R v Boyes (1861) 121 ER 730
Reid v Howard (1995) 184 CLR 1; [1995] HCA 40
Washington (by her litigation guardian Edward Michael Byrt) v Titan Fan Products Australia Ltd [2020] SASC 230
Zhao v Commissioner of the Australian Federal Police (2014) 43…

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Backus & Abano (No 4) [2025] FedCFamC1F 30
Case
[2025] FedCFamC1F 30
Decision Date

CaseChat Overview and Summary

The case of Backus & Abano (No 4) involves a dispute between Ms Backus, the applicant, and Mr Abano, the respondent, regarding property interests and the length of their de facto relationship. The proceedings were initiated by the applicant in December 2020, but have been subject to a stay since March 2022 due to the respondent's ongoing criminal proceedings. The central issue before the court was whether to discharge the stay and proceed with the family law proceedings or maintain the stay pending the finalisation of the criminal charges against the respondent, who is accused of sexually assaulting the applicant's twin daughters. The court had to weigh the potential prejudice to the respondent if the family law proceedings were to proceed against the prejudice to the applicant of further delay.

The court found that the respondent had acted in a manner inconsistent with the maintenance of the privilege against self-incrimination by filing an affidavit in the family law proceedings that addressed matters relevant to the criminal charges. The court also considered the significant prejudice to the applicant, who had been unable to progress her application for over four years due to the stay. The court held that discharging the stay and proceeding with the family law proceedings would not occasion prejudice to the respondent and would, in fact, cause undue prejudice to the applicant. Therefore, the court discharged the orders that had placed a stay on the family law proceedings.

The court ordered that the stay previously imposed on 14 March 2022 be discharged. The trial was set to commence on 7 April 2025, with five days allocated for the proceedings to be conducted in person at the Parramatta Registry. The issues to be determined at the trial included the length of any de facto relationship between the parties and whether the applicant should be granted an extension of time within which to institute the proceedings. The parties were also directed to exchange documents relevant to the trial and to prepare a joint trial chronology. Additionally, the court mandated the preparation and filing of a court book, a tender bundle, and an outline of the case, all in accordance with specific directions provided. Objections to evidence were to be limited to material that was forensically significant to the outcome of the trial. The court further outlined the procedures for subpoenas and the handling of documents produced in response to subpoenas.

Orders

Orders of the court

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:

28 JANUARY 2025

THE COURT ORDERS THAT:

1. Orders 1 to 4 of the Order made by The Honourable Justice Henderson on 14 March 2022 be discharged.

2. The matter be listed for Trial to commence at 10.00 am on 7 April 2025 with five days allocated such trial to conducted in-person at the Parramatta Registry and be limited to a determination about the following issues:

(a) The length of any de facto relationship between the parties; and

(b) Whether (if is it necessary for the applicant to seek such an order), the applicant ought to be granted an extension of time within which to institute the proceedings.

3. Within fourteen (14) days of these orders, each party by his/her solicitor cause a letter to be sent to the solicitor for the other party identifying with precision any categories of documents relevant to a determination of the issues referred to at Order 2 herein, which have not otherwise been disclosed.

4. Within fourteen (14) days of receipt of the written communication referred to at Order 3 herein, each party do produce a copy of the documents requested.

5. Orders 4 to 14 of the Order made by Registrar D’Addona on 31 May 2021 be discharged.

6. The Application in a Proceeding filed on 29 November 2024 and the Response thereto filed on 6 December 2024 be discharged.

7. The costs of and incidental to the Application in a Proceeding and the Response thereto be reserved for both parties to the Final Hearing such costs certified fit for counsel.

Joint Chronology and Balance Sheet

8. The parties prepare and electronically file a joint trial Chronology as follows:

(a) The applicant provide to the respondent by 4.00 on 14 March 2025:

(i) a draft trial Chronology setting out the applicant’s contentions as to relevant dates of each fact and circumstance relied upon.

(b) Within 7 days of receiving the applicant’s draft Chronology, the respondent is to insert into the draft(s):

(i) with respect to the Chronology, any further relevant dates and matters contended for by the respondent; and

(ii) return the draft joint trial Chronology to the applicant.

(c) The parties are to include a concise footnote identifying their reason for any issues or disputes that arise, and provide reference to the relevant paragraph numbers in the parties’ affidavits with further explains/supports the contention.

(d) The applicant is to electronically file and serve the Joint Chronology not less than 7 business after receiving the draft in accordance with Order (b).

(e) In the event that a party fails to comply with this order, the other party shall electronically file their proposed Chronology not less than 6 business days before the commencement trial.

Outline of Case and Court Book for Trial

9. All parties electronically file and serve the following documents for trial:

(a) a Court Book, not later than 4.30 pm 14 days prior to the trial; and

(b) a Tender Bundle, not later than 2 business days prior to the trial,

AND the Court Book and Tender Bundle be prepared strictly in accordance with the directions set out in terms of Annexure “A”, which forms part of these Orders.

10. Not later than 4.30 pm 5 business days prior to the trial all parties electronically file and serve an Outline of Case Document (not exceeding 10 pages) including the matters set out in Annexure “B”, which forms part of these Orders.

11. No party to be permitted to rely upon an Affidavit or filed document if it is not filed in accordance with these orders and included within the Court Book (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court and that the parties are not required to utilise the ‘Outline of Case Document (Final Hearing)’ form.

Objections to Evidence

12. The parties are directed to limit their summaries of objections to evidence which is expected to be forensically significant to the outcome of the trial.

13. In the event that a party objects to any material in any affidavit of the other party, they shall, not less than 8 business days before the commencement of the trial:

(a) Notify the other party in writing of any objection to any material in any affidavit filed by the other party;

(b) Specify the paragraph or part of the paragraph objected to; and

(c) Detail the grounds of objection.

14. The other party shall reply to the objections in writing not less than 5 business days before the commencement of the trial.

15. Prior to the trial, the parties shall confer in relation to any objections and electronically file and serve at least 2 business days prior to the commencement of the trial, a list setting out:

(a) The agreed deletions from each affidavit: and

(b) The objections to be argued on the trial date and the grounds for the objections.

Subpoenas

16. Each party is at liberty to issue such subpoenas as they consider relevant to the issues in these proceedings PROVIDED THAT:

(a) any such subpoena shall be made returnable no later than 14 days before the commencement of the trial and the material produced in answer to the subpoena is inspected prior to the first day of the trial; and

(b) in the case of any unrepresented party, leave is obtained from a registrar.

17. Leave is granted to the parties’ legal representatives and the Independent Children's Lawyer, if applicable, to photocopy documents produced on subpoena, subject to any objections to inspection or copying lodged in writing after the date of these Orders.

18. For the purposes of these directions, the provisions of r 6.37 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as to documents comprising child welfare records, criminal records, medical records, or police records shall not apply,

AND FURTHER photocopies or scans of any such documents be retained in the possession of a parties’ legal representative and Independent Children’s Lawyer at all times, not be otherwise disseminated or distributed in any manner other than for the purposes of the proceedings, and at the conclusion of the proceedings be destroyed by the legal practitioner or returned to the registry.

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

In addition, and by his Response to Application in a Proceeding filed on 6 December 2024, the respondent sought a review of an Order made by Senior Judicial Registrar Tran on 17 May 2023. That application is the subject of an ex-tempore decision delivered by me on 18 December 2024. However, the Order made by the Senior Judicial Registrar Tran is relevant to my determination of the Application in a Proceeding. I will discuss them below.BACKGROUND I will set out in further detail the procedural history of these proceedings and the nature of the criminal charges brought against the respondent. The application cannot be determined without reference to each of them. On 17 December 2020, the applicant brought these proceedings against the respondent to adjust their property interests. By her Affidavit filed in support of the application, the applicant deposed to commencing a relationship with the respondent in 2007.[2] She considers the relationship between the parties to have concluded on 8 November 2020 at which time she says the respondent advised her by telephone to “get out of my house”.[3] For his part, the Respondent:(a)Instructed his solicitors to send a letter to the applicant’s solicitors asserting that “the parties were never in any de facto relationship which would warrant any discussions regarding property settlement”;[4](b)Filed a Response to Initiating Application seeking orders that the Initiating Application be dismissed and that the applicant pay his costs of and incidental to the proceedings on an indemnity basis.[5] In support of that application, the respondent filed an affidavit denying that the parties were in a de facto relationship for the period 2007 to November 2020 as so alleged.[6] On 13 May 2021, the respondent conceded that the parties had been in a relationship for the period 2009 to 2012 only.[7][2] Applicant’s Affidavit filed on 17 December 2020, paragraph 4.[3] Applicant’s Affidavit filed on 17 December 2020, paragraph 29.[4] Applicant’s Affidavit filed on 17 December 2020, Annexture C.[5] Response to Initiating Application filed on 2 February 2021.[6] Respondent’s affidavit filed on 2 February 2021, paragraph 5.[7] Orders made on 13 May 2021, Notation C. By reason of the position adopted by him, the respondent says that the proceedings ought to be dismissed on the basis that the application was filed about six years after the statutory limit prescribed by s 44(5) of the Act. In addition to these proceedings, and as discussed above, the respondent is the defendant in two criminal proceedings brought against him by the Crown. In mid-2021, the respondent was charged with the sexual assault of the applicant’s twin daughters who are now aged 23 years.[8] A trial in respect of those charges commenced in the District Court of New South Wales in mid-2024. The indictment in respect of one adult child was withdrawn in circumstances where the respondent says that she refused to return to the witness box having given some evidence.[9] The charges involving the respondent and the applicant’s other daughter are listed for a Trial to commence in late 2025. It is estimated that the trial will take about two or three weeks.[10][8] Respondent’s affidavit filed on 21 September 2021, paragraph 127.[9] Respondent’s affidavit filed 6 December 2024, paragraphs 13 – 14.[10] Respondent’s criminal solicitor’s affidavit filed 6 December 2024, paragraph 18.

Evidence

Evidence Before The Court

Finally, counsel brought to my attention to the decision of Moshinsky J in Australian Securities and Investments Commission v One Tech Media Limited (2017) 122 ACSR 572. In that case, Moshinsky J had to determine an application for discovery in connection with a contempt of court application. In resisting the application, a firm of solicitors relied upon an Affidavit addressing several substantive matters raised in the contempt application. Moshinsky J found that the use of the affidavit amount to a limited waiver of the law firm’s privilege. Particularly, and at paragraph 40, His Honour said as follows:40.…the firm’s reliance on that affidavit…constituted a waiver of the privilege against exposure to penalty and the privilege against self-incrimination to the extent that it put in issue the dates of payments and the amounts of payment alleged by ASIC in the contempt charges against the firm. The affidavit was filed with the Court and relied on by Kalus Kenny …in opposition to leave being granted to serve the Contempt Application on the firm. In those circumstances, a waiver occurred, albeit to a limited extent: see Ewin v Vergara (No 2) (2012) 209 FCR 288 at [23] – [25].…It was inconsistent with the maintenance of the relevant privileges for the firm to put forward the dates and amounts in the affidavit.Would the respondent’s evidence at trial give rise to prejudice and/or self-incrimination? By the Affidavit, which he filed for the purposes of trial in this Court, the respondent says among other things the following:(a)Between about 2009 and late 2015, he would visit the applicant at the Suburb EE property on “some weekends”.[46] He then says:[46] Respondent’s affidavit filed 21 September 2021, paragraph 28.(i)He would “go to Sydney almost every weekend leaving [Town G] either Friday or Saturday afternoon and return to the [property] the following Monday and on occasions, Tuesday”;[47] and(ii)His “visits to Sydney gradually reduced over time”;[48](b)In late 2015, the applicant moved into a property at Suburb FF built by him albeit the land was owned by the respondent’s son. He says that he “would stay at…[Suburb FF] whenever I was in Sydney”;[49](c)In 2017, he stayed at the Suburb FF property for a period of 14 weeks after he was hospitalised having sustained an injury;[50](d)“Up until 2018, [the applicant] would bring her children to the property during school holidays for a few days about twice a year” and in 2019, the applicant “visited me at the [property] twice and stayed for not more than 2 days each time”;[51](e)His relationship with the applicant “completely broke down in October 2020”;[52](f)The parties “have always lived at separate residences”;[53](g)He was “never involved or assisted with… [the applicant’s] schooling or any activities in which they were involved”;[54](h)He undertook various holidays with the applicant and her children.[55] The locations referred to are not locations where is it alleged by the Crown that offences occurred.[56][47] Respondent’s affidavit filed 21 September 2021, paragraph 29.[48] Respondent’s affidavit filed 21 September 2021, paragraph 30.[49] Respondent’s affidavit filed 21 September 2021, paragraph 33.[50] Respondent’s affidavit filed 21 September 2021, paragraph 34.[51] Respondent’s affidavit filed 21 September 2021, paragraphs 39 – 40.[52] Respondent’s affidavit filed 21 September 2021, paragraph 35.[53] Respondent’s affidavit filed 21 September 2021, paragraph 42.[54] Respondent’s affidavit filed 21 September 2021, paragraph 85.[55] Respondent’s affidavit filed 21 September 2021, paragraph 86.[56] Respondent’s criminal solicitor’s affidavit filed 6 December 2024, Annexure A.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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