Bestari & Henley (No 5) - [2023] FedCFamC1F 783

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bestari & Henley (No 5)

Details

AGLC: Bestari & Henley (No 5) [2023] FedCFamC1F 783
Case: [2023] FedCFamC1F 783
Decision Date: 14 September 2023

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with an application by the husband, Mr Henley, for the disqualification of the judge, Gill J, from hearing contempt and property proceedings. The applicant, Ms Bestari, sought to have Mr Henley held in contempt of court and also sought property settlement orders. Mr Henley argued that Gill J should be disqualified due to a reasonable apprehension of bias. The court had to determine whether there was sufficient evidence to justify the disqualification of the judge based on the apprehension of bias.

The court considered the legal principles surrounding the disqualification of a judge due to apprehended bias. It examined whether a fair-minded lay observer, having knowledge of all the facts, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the matter. The court held that, absent further authority suggesting otherwise, there was no basis for concluding that such an apprehension was reasonable. The court found that Mr Henley's arguments did not sufficiently justify the apprehension of bias and dismissed his application for disqualification.

In the final determination, the court dismissed both of Mr Henley's applications for disqualification. The judge found no reasonable apprehension of bias and therefore no grounds for disqualifying themselves from the contempt and property proceedings. The court maintained that a fair-minded observer would not reasonably apprehend any lack of impartiality.

The court's orders were clear: Mr Henley's applications for the disqualification of Gill J from the contempt and property proceedings were dismissed. This decision reinforced the principle that a judge's impartiality should be presumed unless there is compelling evidence to the contrary.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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