FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Danilov & Wynn (No 5) [2025] FedCFamC1F 420
File number(s): BRC 15350 of 2019 Judgment of: HOWARD J Date of judgment: 2 June 2025 Catchwords: FAMILY LAW – PARENTING & PROPERTY – application for recusal - where the father filed an application seeking the recusal of the trial Judge on the grounds of both actual bias and apprehended bias – where the father had previously applied for the recusal of the trial Judge in March 2023 – where the father’s current application filed 30 May 2025 failed to establish either actual bias or apprehended bias – application for recusal dismissed – where scandalous material was struck from one of the father’s affidavits – where the father applied to stay the proceedings – application for a stay of proceedings dismissed Legislation: Corporations Act 2001 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Aldridge v Keaton [2009] FamCAFC 106
Cavill Business Solutions v Jackson [2005] WASC 138
Corporations Act 2001 (Cth)
Dupois v Queensland Police Service & Anor [2023] QCA 44
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
HRF Nominees Pty Ltd (in liquidation) v Man Civil Constructions [2014] VSC 93
Johnson v Johnson (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal (1989) 17 ALD 522
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Sims v Jooste & Ors (No 3) [2016] FCCA 1751
Sweeney v Sweeney [2016] VSC 483
Zaghloul v Woodside Energy Limited (No 2) [2013] FCA 947
Danilov & Wynn (No 2) [2023] FedCFamC1F 252
Division: Division 1 First Instance Number of paragraphs: 66 Date of last submission/s: 2 June 2025 Date of hearing: 2 June 2025 Counsel for the Applicant: Mr Woods Solicitor for the Applicant: HCM Legal Solicitor for the Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Ms Hellewell Solicitor for the Independent Children's Lawyer: Smithson Lawyers ORDERS
BRC 15350 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DANILOV
Applicant
AND: MR WYNN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
2 JUNE 2025
THE COURT DIRECTS THAT:
1.The Brisbane Registry of the Federal Circuit and Family Court of Australia (Division 1) mark the Court record to indicate that the Respondent father’s Application in a Proceeding was filed on 30 May 2025.
2.In the Reasons for Judgment delivered Ex Tempore on 2 June 2025, references to the Respondent father’s Application in a Proceeding filed 29 May 2025 shall be corrected to read the Respondent father’s Application in a Proceeding filed 30 May 2025.
THE COURT ORDERS THAT:
3.The Respondent father’s Application filed 30 May 2025 seeking the recusal of the Honourable Justice Howard be dismissed.
4.The Respondent father’s Application filed 30 May 2025 seeking a stay of the proceedings be dismissed.
5.The balance of the Respondent father’s Application in a Proceeding filed 30 May 2025 be dismissed.
6.The Registrar of the…
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- AGLC
- Danilov & Wynn (No 5) [2025] FedCFamC1F 420
- Case
- [2025] FedCFamC1F 420
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the father's application for the recusal of Justice Howard was substantiated by evidence of actual or apprehended bias. The court examined the father's grounds for recusal and found them insufficient to warrant the Judge's recusal. Furthermore, the court had to decide whether the scandalous material in the father's affidavit warranted being struck out under the relevant rules of court. The court found that the scandalous material was defamatory, grossly disgraceful, and irrelevant to the proceedings, thus justifying its removal.
The court's reasoning focused on the lack of evidence to support the father's claims of bias against Justice Howard. The court noted the father's previous unsuccessful attempt to have the Judge recused, which further undermined the credibility of the current application. In relation to the scandalous material, the court referred to previous judicial decisions that emphasised the importance of maintaining the dignity and integrity of the court. The court found that the scandalous allegations were not only irrelevant but also damaging to the reputation of the parties involved. The court struck the scandalous paragraphs and related recordings from the record, noting that they were in breach of the Family Law Act 1975, which prohibits the publication of identifying information about persons involved in family law proceedings.
The court made several orders to give effect to its decisions. The father’s application for the recusal of Justice Howard and the application for a stay of proceedings were both dismissed. The scandalous material in the father’s affidavit and the related recordings were struck out, and the father was restrained from publishing or relying on these materials. The court also ordered that the father's solicitor's name and place of employment be removed from the Court record. The orders reflect the court's commitment to upholding the integrity of the judicial process and protecting the parties involved from defamatory and irrelevant allegations.
Orders
Orders of the court
BRC 15350 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS DANILOV
Applicant
AND:
MR WYNN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
2 JUNE 2025
THE COURT DIRECTS THAT:
1. The Brisbane Registry of the Federal Circuit and Family Court of Australia (Division 1) mark the Court record to indicate that the Respondent father’s Application in a Proceeding was filed on 30 May 2025.
2. In the Reasons for Judgment delivered Ex Tempore on 2 June 2025, references to the Respondent father’s Application in a Proceeding filed 29 May 2025 shall be corrected to read the Respondent father’s Application in a Proceeding filed 30 May 2025.
THE COURT ORDERS THAT:
3. The Respondent father’s Application filed 30 May 2025 seeking the recusal of the Honourable Justice Howard be dismissed.
4. The Respondent father’s Application filed 30 May 2025 seeking a stay of the proceedings be dismissed.
5. The balance of the Respondent father’s Application in a Proceeding filed 30 May 2025 be dismissed.
6. The Registrar of the Federal Circuit and Family Court of Australia (Division 1) shall do all things necessary to remove the name and place of employment of the solicitor referred to in the father’s Affidavit filed 29 May 2025 at paragraphs 16 to 23 (inclusive), from the Court record, including all transcripts and Court recordings.
7. Paragraphs 16 to 23 (inclusive) of the Respondent father’s Affidavit filed 29 May 2025 be struck out pursuant to rule 8.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on the basis that those paragraphs are scandalous.
8. The recordings annexed to the Respondent father’s Affidavit filed 29 May 2025 (relating to the content of paragraphs 16 to 23 (inclusive) of the said Affidavit) be struck out pursuant to rule 8.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on the basis that those recordings contain or are likely to contain scandalous material.
THE COURT NOTES THAT:
A. Orders 9 and 10 are made to give full force and effect to Orders 7 and 8 and to give full force and effect to the Reasons for Judgment delivered Ex Tempore on 2 June 2025.
THE COURT ORDERS THAT:
9. The Respondent father be restrained by injunction from publishing or republishing or relying upon any of the allegations which refer to the Court or to the Presiding Judge contained in paragraphs 16 to 23 (inclusive) of the Respondent father’s Affidavit filed 29 May 2025 and also contained in the recordings annexed to the Respondent father’s Affidavit filed 29 May 2025.
10. The injunction contained in Order 9 shall remain operative unless leave is granted to the father to rely upon any of the stated paragraphs or recordings and such leave can only be granted by a Judge of the Federal Circuit and Family Court of Australia (Division 1) or by a Judge of the High Court of Australia.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In a decision entitled Sweeney v Sweeney [2016] VSC 483, Digby J of the Supreme Court of Victoria stated, inter alia:“26, The plaintiffs’ submissions rely upon HRF Nominees Pty Ltd (in liq) v Man Civil Constructions Pty Ltd.4 In that matter Derham AsJ described the operation of r 23.02 and r 27.07 as follows:In relation to the power under Rule 23.02 to strike out pleadings that are scandalous, frivolous or vexatious, it has been found that allegations made for the purpose only of abusing or injuring the opposite party, and allegations which are indecent or offensive, are scandalous within the meaning of the rule, and liable to be struck out. It may be that the matter is defamatory or grossly disgraceful and irrelevant to the claim or defence. Similarly, in relation to applications to strike matters out of affidavits under Rule 27.07, and its predecessors, matters will be struck out where it is both scandalous, in a sense used above, and irrelevant or it may be unnecessarily indecent or libellous, and irrelevant. (citations omitted)” In paragraph 26, Digby J was referring to a power to strike out pleadings that are scandalous, frivolous, or vexatious. His Honour was quoting from a decision entitled HRF Nominees Pty Ltd (in liquidation) v Man Civil Constructions [2014] VSC 93 (“HRF Nominees”) at paragraph 57. In HRF Nominees - the reference was made to scandalous matters which were “defamatory or grossly disgraceful and irrelevant to the claim or defence”. I would certainly characterise the paragraphs currently under consideration as defamatory and grossly disgraceful. In paragraph 27 of that decision in Sweeney, Digby J refers to a decision of Hasluck J in the West Australian Supreme Court called Cavill Business Solutions v Jackson [2005] WASC 138 at paragraph 25, where Hasluck J said:“25. The learned author observes at par 20.19.8 that the mere allegation of a scandalous fact does not render the pleading liable to be struck out as scandalous, for material which is degrading and therefore scandalous will not be struck out unless it is also irrelevant. Scandal consists in the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause: to which may be added that any unnecessary (not relevant to the subject) allegation bearing purely upon the moral character of an individual is also scandalous. In a decision of the Federal Court called Zaghloul v Woodside Energy Limited (No 2) [2013] FCA 947 (“Zaghloul”), consideration was again given to scandalous material, and on that occasion, the scandalous material was contained in written submissions. A convenient summary of what occurred in Zaghloul appears in a decision of Judge Lucev of the Federal Circuit Court of Australia, as that Court was then known. In paragraph 26, (of the decision entitled Sims v Jooste & Ors (No 3) [2016] FCCA 1751) Judge Lucev referred to the decision in Zaghloul, and stated inter alia:[1]“26. In Zaghloul v Woodside Energy Ltd (No. 2) [2013] FCA 947 (“Zaghloul”) the Federal Court dealt with an application which alleged, in effect, that the applicant’s solicitor and Senior Counsel had been involved in negotiations with the respondent to obtain monies unlawfully, and had used his consent to transfer the proceedings from the Federal Court’s Australian Capital Territory Registry to the Western Australian Registry as a successful bargaining chip, or as the applicant put it, he “was, once again, used as a fair game to extract money from the Respondent”. The Federal Court found the allegation to be unsupported by evidence, and to be scandalous: Zaghloul at [52]-[53] per Gilmour J.”[1] Judge Lucev was referring to paragraphs 52 and 53 in the decision of Gilmore J in Zaghloul.