FAZARRI & HSIAO - [2018] FamCA 446

FAMILY COURT OF AUSTRALIA

FAZARRI & HSIAO

[2018] FamCA 446

RECUSAL – where the wife asserts conflict of interest because judge’s associate has same name as husband’s former wife and contemplates there is a connection – where the wife asserts apprehended bias based on issues of discussion with various counsel – application for recusal rejected.

ADJOURNMENT – where wife seeks adjournment maintaining husband has not complied with discovery obligations – application refused.

Family Law Act 1975 (Cth)

AON Risk Services Australia Limited v Australian National University [2009] HCA 27
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Re JRL; ex parte CJL (1986) 161 CLR 342
Johnson v Johnson (2000) 201 CLR 488
Strahan & Strahan (Disqualification) (2009) FLC 93-414

APPLICANT:

Mr Fazarri

RESPONDENT:

Ms Hsiao

FILE NUMBER:

MLC

11418

2016

DATE DELIVERED:

19 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

14 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr North SC with Mr Schmidt

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

THE RESPONDENT:

In Person

Orders

That the applicant husband have leave to rely upon five affidavits as to valuations relating to property matters.
That the respondent wife’s application for an adjournment is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fazarri & Hsiao has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11418 of 2016

Mr Fazarri

Applicant

And

Ms Hsiao

Respondent

REASONS FOR JUDGMENT

These are my reasons relating to three rulings made on 14 June 2018 in proceedings between Mr Fazarri (the husband) and Ms Hsiao (the wife).
The hearing on 14 June 2018 was to have been the first day of a final hearing between the husband and wife concerning property and spousal maintenance issues arising from their marriage. At the hearing, Mr North SC and Mr Schmidt appeared for the husband and the wife represented herself. She had been represented by solicitors until 7 June when a notice was filed that the solicitors were ceasing to act for her. Counsel on behalf of the solicitors attended the hearing to formally ask to be permitted to withdraw. On the day before the hearing was to begin, the wife filed an application in a case supported by a number of affidavits. It is that application that I am dealing with here.
These reasons therefore deal with:
(a)The wife’s assertion that there was a “conflict of interest” because my associate was said by her to be related…

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 FAZARRI & HSIAO

Details

AGLC: FAZARRI & HSIAO [2018] FamCA 446
Case: [2018] FamCA 446
Decision Date: 19 June 2018

CaseChat Overview and Summary

In the matter of *Fazarri & Hsiao*, heard before Cronin J, the wife sought the recusal of the judge on the grounds of apprehended bias. This apprehension arose from the fact that the judge's associate shared the same name as the husband's former wife, leading the wife to suspect a connection. Additionally, the wife alleged apprehended bias stemming from discussions the judge had with various counsel. The wife also applied for an adjournment, asserting that the husband had failed to comply with his discovery obligations.

The central legal issues before the court were whether there was a sufficient basis to establish apprehended bias warranting recusal, and whether the husband's alleged non-compliance with discovery obligations justified an adjournment of the proceedings.

Cronin J rejected the wife's application for recusal, finding that the mere coincidence of names between the judge's associate and the husband's former wife, without more, did not establish a reasonable apprehension of bias. Similarly, the court found no evidence of apprehended bias arising from discussions with counsel. The application for an adjournment was also refused, indicating that the court was not satisfied that the husband's discovery obligations had been so significantly breached as to warrant delaying the proceedings.

The court granted the applicant husband leave to rely upon five affidavits concerning property valuations. The respondent wife's application for an adjournment was refused.

Orders

Orders of the court

That the applicant husband have leave to rely upon five affidavits as to valuations relating to property matters.

That the respondent wife’s application for an adjournment is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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