Bestari & Henley (No 5)
[2023] FedCFamC1F 783
•14 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bestari & Henley (No 5) [2023] FedCFamC1F 783
File number(s): CAC 2301 of 2021 Judgment of: GILL J Date of judgment: 14 September 2023 Catchwords: FAMILY LAW - PROCEDURE - Disqualification - Reasonable apprehension of bias - Direction to Principal Registrar to make application to deal with a party for contempt - Nature of determination - Nature of assessment of adequacy of evidence to give such a direction - Determination of law - Direction on discretionary exercise Legislation: Evidence Act 1995 - s 131
Family Law Act 1975 (Cth) - s 112AP
Cases cited: Charisteas v Charisteas (2021) 273 CLR 289
Bestari & Henley (No 3) [2023] FedCFamC1F 725
Bestari & Henley (No 4) [2023] FedCFamC1F 726
May v O’Sullivan (1955) 92 CLR 654
Re JRL; Ex parte CJL (1986) 161 CLR 342
Silva & Phoenix (2018) FLC 93-825
Division: Division 1 First Instance Number of paragraphs: 91 Date of last submission/s: 31 August 2023 Date of hearing: 23 August 2023 Place: Canberra Counsel for the Applicant: Mr Hedges, SC Solicitor for the Applicant: Hosking & Gosling Legal Counsel for the Respondent: Mr Batey Solicitor for the Respondent: Delaney Lawyers ORDERS
CAC 2301 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BESTARI
Applicant
AND: MR HENLEY
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The husband’s application that I disqualify myself from contempt proceedings against him is dismissed.
2.The husband’s application that I disqualify myself from the property proceedings between the parties 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
This judgment concerns an application by the respondent husband that I recuse myself from the future determination of two matters concerning these parties; being in respect of a contempt application to be filed against the husband, and in respect of their unresolved property claim.
The application follows the consent determination of parenting proceedings, and the parties’ presentation of consent terms to resolve their property dispute that I declined to make. It further follows aa direction made by me that the Principal Registrar (or a delegated Registrar) commence contempt proceedings against the husband.
The husband contends that a fair-minded lay observer might reasonably apprehend that I may not bring an impartial mind to either:
(a)The question of whether the husband has committed a contempt of court; or
(b)The just and equitable division of property between the parties.
In broad terms the husband asserts that grounds for recusal in relation to the contempt proceedings arise in the following manner:[1]
It is crucial to note that the husband does not challenge the finding of the referral to the Principal Registrar, and therefore does not challenge his Honour’s reasons on that point – he instead raises issue with his treatment by his Honour in the courtroom.
[1] Submissions sealed 31 August 2023 [47].
The husband identifies a series of issues that he says arise from the conduct of the proceedings leading to the direction to the Principal Registrar to commence contempt proceedings against the husband.
In broad terms the husband asserts that the grounds for recusal in relation to the property proceedings arise from the parties’ submission of terms, rejected by me, that provided for a particular percentage split of the property between the parties.
Although the recusal application was argued separately in relation to each aspect, it should be understood that if the husband’s recusal argument in respect of the contempt issue is made good, it may also impact whether I should be disqualified in relation to the property dispute.
Before moving to consider the husband’s arguments it should be observed that at present the issue of recusal in relation to the contempt proceedings does not arise. This is because, although a direction has been given to the Principal Registrar to commence such proceedings, at the time of the application, and at the time of this judgment, no such proceedings have yet been commenced. The consequence of this is that there are no such proceedings before me from which I should be disqualified.
That is, the application is premature. This is said without any disrespect for the timing of the husband’s application, it being appropriate that such applications be taken promptly. However, at present the issue of disqualification in relation to the future proceedings for contempt does not arise and the application in respect of such will be dismissed.
However, as indicated above, to the extent that the arguments raised by the husband in relation to the contempt issue speak to a reasonable apprehension of bias they should still be considered in determining the disqualification issue in relation to the parties’ property dispute.
I will deal firstly with the issues raised in respect of the contempt application, and secondly in respect of the property proceedings, and then consider whether there is an interaction between the two that otherwise calls for recusal.
The contempt issue
The contempt issue arose in the following manner. Orders were made on 8 December 2022 that, in summary, restrained the husband from commencing or pursuing litigation in Country B in respect of the parties’ child X, or their property. In early 2023 the husband caused his Country B lawyers to lodge an appeal in respect of divorce and parenting proceedings in the Supreme Court of Country B. Each of these factual issues was conceded by the husband in his trial affidavit material.
The filing of the appeal by the husband occurred in the further context of the wife having failed to discontinue an appeal before the High Court of City G. The orders of 8 December 2022 obliged the wife to do so, but, unknown to the court, the High Court of City G disposed of the appeal in favour of the wife prior to the delivery of judgment by this court. That appeal reversed an earlier determination by the District Court of City G that gave the husband custody of X, instead granting it to the wife. The general background of this litigation is set out in the judgment of 8 December 2022.
On 23 August 2023 I made an order in the following terms:
I direct that the Principal Registrar, or such Registrar as nominated in writing by him, make an application for the husband to be dealt with for contempt in relation to contravention of the orders of 8 December 2022.
Prior to giving the above direction the husband was afforded the opportunity to address me as to whether I should make an order directing that an application be made that he be dealt with for contempt. Following those submissions, a judgment was delivered on 23 August 2023 setting out the reasons for making the direction. In his written submissions the husband observes that he makes no challenge to the above direction, but raises issue with the manner in which he was treated in the courtroom.
Following the making of that direction the husband sought that I disqualify myself from hearing the matter further. In support of that application the husband made oral submissions and a direction was made permitting the husband to file written submissions in support of that application, which he did.
THE HUSBAND’S SUBMISSIONS IN RESPECT OF DISQUALIFICATION IN RELATION TO THE CONTEMPT MATTER
In oral submissions, I identified to the husband what I understood his application to rely upon, which was confirmed by the husband, as follows:
… if I understand you correctly, you’re saying that the mere fact that I conclude that there are matters that warrant an application being made, in the manner that I just described, means that... there’s a reasonable apprehension of bias.
And further:
… illustrated on the basis that I’ve made a selective assessment of evidence contained within the husband’s affidavit material, and decided that there is sufficient to warrant there being a direction that an application be made that he be dealt with for contempt.[2]
[2] Submissions sealed 31 August 2023 p.16.
In his written support for the application for recusal the husband asserts that the apprehension of bias arises from the manner in which he was treated in the courtroom. Having recited a number of interactions throughout the trial the husband then identifies a suite of matters at p18ff of his written submissions.
The interactions in respect of the direction to bring a contempt application
The interactions in respect of contempt commenced on the first day listed for the final trial on 21 August 2023, when I raised the “potential non-compliance by each of the parties with the orders that I made in respect of the [Country B] litigation”, and sought guidance from counsel as to when, where and whether I would need to “grapple” with such, observing that the husband “on his material, admits that he has simply flouted the orders that I made not to prosecute litigation in [Country B].” I identified to counsel that “at some point it may be that I need to deal with that.”
Specifically, I then sought guidance from counsel as to what would be procedurally fair in dealing with those issues in the context of the rest of the dispute.
I further described that, in his affidavit material, the husband had made a concession to having commenced the appeal before the Supreme Court of the Country B, that “appears at face value, to place him squarely in defiance of the orders that I’ve made, and that could be considered to be a serious default on his part in respect of the orders.”
I then identified to counsel that I was asking that if I needed to deal with the matter, potentially involving a flagrant disregard for the court’s orders, when would it be procedurally fair to do so, recognising that by the end of the proceedings, I may determine that there is no need to deal with the matter. I reiterated the enquiry was as to securing procedural fairness for the husband in dealing with the issue should it need to be dealt with.
Counsel identified that there was a need to take instructions, and that there may be a simple explanation. Given that the parties had indicated a need for time to advance discussion in relation to the parenting dispute, the matter was stood down for a short time (which was ultimately extended on a number of occasions into a lengthy time). I identified that this gave an opportunity for counsel to take further instructions about the contempt and procedural fairness issues that I had raised.
It may be noted that a contested application by the wife to adjourn the trial was also before the court. As the parties negotiated the contentious matters between them the adjournment application was deferred.
Later that day the parties advised that they had reached an agreement in respect of the parenting dispute and later again, an in-principle settlement of the property dispute.
Counsel for the husband then raised the contempt issue, correctly observing that the resolution of the substantive disputes would not prevent proceedings pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”). Counsel noted that even if there was a resolution of the whole proceedings, the husband remained vulnerable to the contempt issue, as either the court or the wife could still bring a contempt application. I indicated that I agreed with counsel that the husband was in a vulnerable position.
I identified to counsel the “spectre of potential contempt” on the material as filed and accepted that the potential for such proceedings remained. I observed that I had not as yet crystallised my position as to whether such proceeding should take place. I identified to counsel that he could address me on the issue, including if the proceedings either did, or did not settle.
Counsel further submitted that if settlement had not been reached, he would have sought that his client not give evidence until either the court or the wife brought an application.
Having identified that this was the dilemma faced by the husband, counsel accepted, presumably in the context of ongoing negotiations, that it was not one that had yet crystallised (the requirement to be cross-examined having not yet arisen).
Again, I identified to counsel that I had raised the matter at the outset to enable counsel to address me as to procedural fairness issues, and invited counsel to address me when he saw fit. The matter was adjourned to the following day.
When the matter resumed the second day of the listing, the parties identified that they had a “more than in principle agreement” with respect to the property, and asked for it to be stood down again.
Later that day I made final parenting orders in accordance with the consent of the parties.
Submissions were then made regarding proposed consent property terms, and the matter was adjourned to the following day.
On the third day of the listing further terms were handed up, subject to some further discussions, and counsel for the husband addressed the contempt issue, asking that it then be addressed given no application had yet been made to deal with the husband for contempt.
Counsel for the wife then raised the issue of disqualification in relation to the property proceedings in the event that they did not settle, given my exposure to the terms then being negotiated by the parties. However, no application was then made, and I indicated that I would deal with this issue should one be made.
I identified to counsel for the husband that I would deal with the issue of the contempt application on determining whether or not I could make orders in accordance with the terms of the property settlement proposed by the parties. Other issues such as disqualification in respect of the property proceedings could then be dealt with. I enquired of counsel for the husband whether there was an issue in relation to that approach.
The matter was then stood down for consideration of the proposed property settlement terms, whilst the parties continued to deal with both details in respect of the terms, and their execution. Later in that third day, after standing the matter down I returned to the bench and advised the parties that I considered that I could not make orders of the nature proposed. I then gave an ex tempore judgment supported by reasons to that effect (Bestari &Henley (No 3) [2023] FedCFamC1F 725). The reasons for that refusal will be dealt with further in relation to the property disqualification aspect of this judgment.
I enquired of counsel for the husband as to whether he wished to have the issue of the potential application to be dealt with for contempt then dealt with. He identified he did.
I articulated the issue as follows:
Mr Batey, I’m considering directing that the principal registrar conduct contempt proceedings against your client. Those contempt proceedings would be in relation to a breach of the 8 December orders as they dealt with your client conducting litigation in [Country B] in respect of [X] and would be based upon the apparent admissions made in your client’s affidavit that notwithstanding his understanding of the obligation, he commenced proceedings by way of review in the Supreme Court of [Country B] after I directed that he not do so. That seems to me to bear the flavour not only of a contravention of orders but of a contravention which amounts to a flagrant challenge to the court’s authority. I’m considering taking that step, Mr Batey. Do you wish to address me in any way now in relation to whether or not I do that?[3]
[3] Transcript 23 August 2023, p.48 lines 27-37.
An exchange took place within which the husband raised the issue of recusal in respect of the hearing of an application for contempt. I identified that the present issue was confined to the question as to whether a direction should be given for an application for contempt to be filed:
I’m giving you the opportunity to address me on whether I give that direction to an officer of the court based on those factual propositions that I’ve just outlined to you.[4]
[4] Transcript 23 August 2023, p.49 lines 42-44.
The exchange continued, with counsel for the husband submitting that he lacked the evidence relating to the charge, and that his client had a “rock solid” defence that would require the calling of further evidence. Counsel then submitted as to matters that pointed away from giving a direction that an application for contempt be brought. Included amongst those submissions was identification of the failure of the wife to discontinue her appeal, as in such circumstances the husband’s appeal to the Supreme Court was protective of the husband’s position:
And then I’m not saying that would amount to reasonable excuse, but, nevertheless, your Honour, I’m saying that you would have to take that into account...[5]
[5] Transcript 23 August 2023, p.50 lines 38-39.
On the third day of the trial listing I delivered a judgment and reasons directing the bringing of an application as identified earlier in this judgment (Bestari & Henley (No 4) [2023] FedCFamC1F 726).
The husband then sought that I disqualify myself from the further hearing of the matter, making oral and then written submissions.
Principles
The husband has set out the relevant law in respect of disqualification in a comprehensive and compact manner.
In Charisteas v Charisteas (2021) 273 CLR 289 at 296 the High Court repeated the applicable principles at [11] and [12]:
[11] Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial — that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge… to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
[12] As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.
(Citations omitted)
Although a lengthy extract, the relevant principles, encompassing both the obligation imposed upon a trial judge to determine cases, and obligations of disqualification, are well set out in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
(Citations omitted)
Turning to the questions identified in Charisteas, the matters which are said to potentially lead me to decide a case on factors other than its legal and factual merits may be identified from the submissions of the husband set out below. It follows that there must then be a consideration of whether there is a logical connection between those matters and a departure from determination of the case on its merits.
Discussion in relation to the matters raised by the husband in respect of contempt
The husband observes, correctly, that at the start of the proceedings the potential contempt issue was identified, and continued to be identified by me throughout the proceedings. This reflects the exchanges identified above. What accompanied this was an ongoing enquiry as to when the issue should be dealt with, in the context of the parenting and property proceedings.
At [42] the husband asserts that it is important to note that no submissions were sought, and no consideration given, as to the potential impact upon the best interests of the child of contempt proceedings, in the context of the proposed parenting orders, between the handing up of the terms and the making of the parenting orders.
The husband submits that prior to making the parenting orders I ought to have raised the issue of possible contempt proceedings being a question for exploration on the evidence. Having, in the husband’s description “let that moment pass without comment”, then moving to direct that contempt proceedings be commenced, the husband submits that a fair minded lay observer might reasonably conclude that the motivation to do so came from a prejudgment.
The husband was invited to identify when the issue of contempt should be dealt with, and did not ask that it be dealt with until the third day of the trial, at a point after the consent terms in relation to parenting had been ordered. After handing up parenting terms, but prior to orders being made, the husband indicated that if the trial proper had commenced he would have sought that his cross-examination be deferred until after the issue of a contempt application had been determined.
In that context it remains unclear what should have been raised with the husband that had not already been raised.
It remains unclear how the potential for such proceedings should have been taken into account in determining whether to make the consent orders.
Despite both parties being aware of the prospect of contempt proceedings, neither chose to identify such as a matter going to whether the orders they jointly proposed for the child ought to be made. The absence of such submissions counters the notion that a failure to have regard to such is an indicator of an apprehension of bias.
The husband further points to my description that the husband’s conduct had the “flavour” of a flagrant challenge to the court’s authority. Allied to this it is suggested that I moved from hinting at contravention to appearing to indicate that the husband’s evidence would be sufficient to sustain a contempt charge.
The husband further submits that, when indicating that the evidence from the husband was sufficient to justify a contempt application, I abandoned the idea that the question of contempt was to be dealt with on the basis of developing evidence and cross-examination. It is submitted that, having raised the possibility that further evidence may contextualise the husband’s commencement of proceedings in the Supreme Court, and otherwise mean that contempt need not be pursued, the pursuit of a contempt application absent further exploration was indicative of a fixed position.
It is somewhat difficult to unpack the submission in relation to the developing evidence. The husband’s own submissions at [40] identify that on the first day of the trial I said that the evidence arising from trial may inform the question of contempt proceedings being directed.
Having identified this possibility, the parties did not embark on a process of developing the evidence. The husband identified his resistance to being cross-examined pending the resolution of the contempt issue. The parties then engaged in further negotiation. The timing of the resolution of whether a contempt application should be directed, in the absence of further exploration of the evidence, was at the request of the husband.
The possibility, identified at the start, that the developing case may point away from contempt proceedings being directed, did not eventuate.
Having identified that an issue as to contempt arose on the husband’s material, having accepted that further evidence may point away from the need to commence contempt proceedings, where no such evidence was forthcoming, and where the husband agitated that the issue be dealt with at a particular point in the proceedings, it cannot be sustained that there was a change in position that indicated a fixed view.
The husband further submits that the determination that the proceedings be commenced is prosecutorial conduct on the part of the decision maker, inconsistent with impartiality. The key issue there appears to be whether the fact of making the direction that contempt proceedings be commenced is itself a basis for disqualification as being indicative that I may not bring an impartial mind to the determination of the matter on its merits. This is to be determined in the context of what it is that was being determined on the making of such a direction.
The nature of the issue being determined
The issue raised at the commencement of the trial, and throughout the trial, was whether contempt proceedings should take place.
That question required, firstly, consideration of whether there was evidence that may be capable of sustaining the notion that there was a flagrant challenge to the authority of the court and, secondly, consideration of whether proceedings should be commenced to deal with such a prospect.
The question of whether proceedings should be commenced could also be informed by evidence coming before the court during the trial, which may undermine the notion that there was a flagrant challenge to the authority of the court, or raise some other reason why contempt proceedings should not be pursued.
Such a trial did not occur, and so the issue of whether proceedings should be commenced was to be answered on the state of the evidence that had been filed.
The first question of whether there is evidence capable of sustaining the notion that there was a flagrant challenge to the authority of the court is a distinct question from whether the evidence sustains, beyond reasonable doubt, that was such a flagrant challenge to the authority of the court.
This is a distinction similar to the distinction between a trial judge in criminal proceedings determining that there is a case to answer, as opposed to determining that a charge is made out beyond reasonable doubt. In May v O’Sullivan (1955) 92 CLR 654 at 658 the High Court observed:
When, at the close of the case for the prosecution, a submission is made that there is “no case to answer”, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law.
It is a question of law whether the evidence is sufficient to present a case to answer. Similarly, it is a question of law whether the evidence may be capable of sustaining a conclusion that there has been a flagrant challenge to the authority of the court.
Without wishing to do any injustice to the submissions of counsel for the husband, this characterisation appeared to be accepted where he submitted:[6]
... All right, and then, your Honour has made, we say, a preliminary finding that there is sufficient evidence there that he be referred, on a question of contempt, which is a matter of law, we would say, and we would say your Honour has made some preliminary comments in respect of how that would go. So we would say, your Honour, that your Honour has decided, we would say, that there’s sufficient evidence there, and we say on a very selective assessment of the evidence.
[6] Transcript 23 August 2023, p.55 lines 23-28.
To the extent that it is suggested by this submission that a selective use of the evidence raises a reasonable apprehension of bias, the husband was invited to identify what matters should be taken into account against the commencing of contempt proceedings. Those matters were dealt with in the judgment, not the subject of challenge, that directed the commencement of proceedings. In that context, a failure to have regard to a particular matter remains unidentified, and, insofar as the submission suggests a self-selectivity on my part, such a submission cannot be justified.
The determination of sufficiency of the evidence is not a matter that raises a reasonable apprehension of bias.
It may be accepted that, once it has been determined that there is evidence capable of constituting a contempt of the court, the decision to direct that the proceedings be commenced requires a discretionary evaluation and conclusion.
The same is true of a judge dealing with a contempt in the face of the court.
Unlike that situation, where it is acknowledged that the presiding judge acts effectively both as prosecutor and judge, in this instance, the prosecution of the matter is the responsibility of the Principal Registrar.
The question is whether the direction to commence the proceedings raises a reasonable apprehension that I may not bring an impartial mind to the issue of whether the husband is in contempt of the court. The relevant paragraph of the judgment of 23 August 2023 that gave that direction was as follows:
However, accepting that an order to direct that an application be made is discretionary, when seen in the light of the commencement of the appeal proceedings in the Supreme Court of the [Country B] in apparent direct defiance of the anti-suit injunction, proceedings that apparently remain on foot at present, as this hearing is being conducted, the above matters identified by the husband do not outweigh the importance of conducting proceedings in vindication of the court’s authority. It may well be the case that the husband will point to circumstances that undermine the notion that his conduct was in flagrant disregard of the authority of the court. That will be a matter for the hearing of an application grounded in the circumstances as set out above that surround the commencement of his proceedings in the Supreme Court of [Country B].
The expression of the basis for the discretionary determination to direct that proceedings be commenced is articulated on the basis of what was then “apparent”, inherently accepting that this might not be the ultimate substance of what has occurred, and further qualified on the basis that circumstances may also be identified to undermine the current appearance.
That is, the terms of the judgment itself are not suggestive of a fixed position, but of an assessment of the current appearance of the circumstances.
Notably, the determination that the proceedings should be commenced involved no assessment of the credibility of the husband.
Under these circumstances I am not satisfied that the husband has demonstrated that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
The effect of this conclusion is that the husband’s suggestion as to apprehension of bias in respect of contempt proceedings does not buttress his application for disqualification as directed to the property proceedings.
THE PROPERTY PROCEEDINGS
As identified above, this issue stems from my exposure to the parties’ attempted settlement of the property proceedings, which encompassed exposure to the percentage division that each proposed would constitute a just and equitable division of the pool of their property.
The husband relies upon an extract from Silva & Phoenix (2018) FLC 93-825.While that case deals with a trial judge’s exposure to a proposal to compromise, the particular issue the subject of the extract from the judgment is whether the trial judge, in determining a recusal application, failed to take into account a relevant consideration, being that the trial judge had been exposed to the terms of the offer of compromise. The extract confirms the ground was made out, being that such had not been taken into account. It was not said in that judgment that exposure to such is automatically a basis for disqualification, but that it is a relevant consideration.
On the issue of recusal in that case, the issue was that the trial judge had expressed a view that the proposed percentage division was not appropriate.
The position here is somewhat different. Here the reasons for the refusal to make orders of the nature sought are set out in the judgment of Bestari & Henley (No 3) [2023] FedCFamC1F 725. The refusal did not relate to the percentage split, or to an assessment of the percentage split, but to other issues with the terms, including their reliance on a third party identifying the interests of the parties in an item of real estate, and of another third party preparing valuations that would then determine, as an aspect of the orders, the entitlements of each.
Unlike in Silva, it cannot be contended that a view has been expressed one way or another about the percentage division.
Specifically, when considering exposure to the terms of settlement, and in particular the proposed percentage split, the question that arises is whether this would mean that a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question the judge is required to decide.
Assuming, without determining, that at its highest the proposed terms are inadmissible on the trial of the matter pursuant to s 131 of the Evidence Act 1995, I would be required to disregard them, in the same manner that I am required to disregard objectionable evidence that is ruled upon and rejected in any trial. Such an approach would be well understood by the reasonable lay observer as ordinary judicial practice.
However, it should not be thought that it is inevitable that the terms would not be admissible, given that there are exceptions to the general exclusion of settlement negotiations contained at s 131, such as where the communication has been tendered in the proceedings by consent.
Absent the identification of further authority that may indicate otherwise, I am unable to conclude that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question that I may be required to decide.
CONCLUSION
A sufficient justification for disqualification has not been firmly established, and no order for disqualification is made.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 14 September 2023
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