Genesalio & Genesalio (No 2)
[2023] FedCFamC1F 611
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Genesalio & Genesalio (No 2) [2023] FedCFamC1F 611
File number(s): MLC 7657 of 2018 Judgment of: JOHNS J Date of judgment: 25 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – apprehension of bias – where there was a previous order joining the second respondent to proceedings – where the second respondent seeks the primary judge disqualify herself – where second respondent alleges there is an apprehension of bias – apprehension of bias not established – orders made dismissing application Legislation: Family Law Act 1975 (Cth) s 79 Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Genesalio & Genesalio [2023] FedCFamC1F 160
Johnson v Johnson (2000) 201 CLR 488
Vakauta v Kelly (1989) 167 CLR 568
Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 11 July 2023 Place: Melbourne Counsel for the Applicant: Ms Frederico Counsel for the First Respondent: Dr Ingleby Counsel for the Second Respondent: Appeared in Person ORDERS
MLC7657 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GENESALIO
Applicant
AND: MR GENESALIO
First Respondent
MR M GENESALIO
Second Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
25 JULY 2023
THE COURT ORDERS THAT:
1.That paragraph 2 of the second respondent’s Application in a Proceeding filed 3 July 2023 seeking that the primary Judge recuse herself 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 the pseudonym Genesalio & Genesalio has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTON
These proceedings relate to the competing property applications between the applicant wife, Ms Genesalio, and the respondent husband, Mr Genesalio who were married for approximately 26 years. Both now seek an adjustment of their property interests pursuant to s 79 of the Family Law Act 1975 (Cth).
On 26 April 2023 upon application of the wife (which was opposed by the husband and his brother), I made orders that the husband’s brother, Mr M Genesalio, be joined as the second-named respondent in the proceedings. That day, I published Reasons for Judgment in relation to that decision (Genesalio & Genesalio [2023] FedCFamC1F 160).
By Application in a Proceeding filed 3 July 2023 the second respondent sought the following relief:-
1.Stay the orders made on 26 April 2023 pending the outcome of the appeal NAA141 of 2023.
2.The primary judge recuse herself from the proceeding and dismiss all orders made on 26 April 2018.
That application was listed for hearing before me on 11 July 2023. In addition to the issues raised in the second respondent’s Application in a Proceeding, the matter was listed to finalise outstanding issues with respect to disclosure arising from the wife’s Further Amended Application in a Proceeding filed 19 August 2022.
The application that I recuse myself was opposed by the wife and the husband.
In light of the second respondent’s application that I should be disqualified from hearing the matter, it was common ground between the parties that prior to the determination of other outstanding issues, it was necessary for me to first determine that application.
For the reasons that follow, I found that there was no basis for me to disqualify myself from hearing the matter and I dismissed the second respondent’s application. At the time that order was made, I indicated that I would provide reasons for judgment at a later date. These are those reasons for judgment.
BACKGROUND
The wife is aged 63 years and is employed as an educator.
The husband is aged 67 years. He has suffered from ill health since around 2010 and has not worked since that time.
The husband and wife married in 1994 and separated under the one roof in August 2017. The parties divorced in 2020. There are three adult children of their relationship.
In November 2018 orders were made for the wife to have sole use and occupation of the former matrimonial home at Suburb C. Since that time, the husband has resided with his brother, the second respondent, at the home of their late parents at F Street, Suburb C.
The second respondent is a professional and operated his own business until about 2005. The husband deposes that at present, he is heavily reliant upon his brother’s support, both financially and as his physical carer due to the husband’s ongoing ill health.
PROCEDURAL HISTORY
By Further Amended Application in a Proceeding filed by the applicant wife on 19 August 2022, she sought orders that the husband’s brother be joined as a party to the proceedings. She also sought orders for the valuation of property held by the husband’s brother or entities controlled by him, and sought orders for disclosure. That application was opposed by the husband and his brother.
The wife’s application for joinder was listed before me on 12 July 2022. That day, I made orders requiring the wife to file and serve a Statement of Claim setting out the legal and factual basis of any claim by her that the husband has a legal and/or equitable interest in property owned by his brother or any entity controlled by him. I also ordered that the husband and his brother each file a Defence to the wife’s Statement of Claim. The matter was otherwise adjourned for an Interim Defended Hearing, which proceeded before me on 21 November 2022.
At the hearing on 21 November 2022, the husband and wife were both represented by Senior Counsel. The husband’s brother represented himself. Both the husband and his brother opposed the wife’s application for joinder. It was conceded by them that if an order was made for joinder of the husband’s brother, it followed that orders should be made for the valuation of the interests the subject of dispute, which included property held by the husband’s brother or entities controlled by him. The husband’s brother confirmed during his oral submissions that he adopted and relied upon the submissions made by Senior Counsel for the husband in support of his opposition of joinder.[1]
[1] Genesalio & Genesalio [2023] FedCFamC1F 160, [100]
On 26 April 2023 I ordered that the husband’s brother be joined as the second-named respondent in the proceedings and I published my Reasons for Judgment (“the Reasons”). I made further orders for the valuation of properties, motor vehicles and number plates held by the second respondent or his entities.
In the Reasons I stated at [101] to [103] as follows:-
101Having regard to the wife’s Statement of Claim and the evidence filed by her in support of her claim and Application for Final Orders, I do not accept the submission that she has failed to particularise her claim. The wife has identified the property against which claim is made and actions taken by the husband and his brother which she says establish her claims; for example, the transfer of her interest in [H Street], and the borrowing of funds from private lenders secured against properties for the benefit of the [E Trust], a trust asserted to be that of the husband’s brother.
102Further, I do not accept the contention that the wife has fabricated the claim with respect to the alleged partnership.
103There is a clear factual dispute between the parties as to the circumstances of the acquisition of property by them or entities controlled by them during the course of the relationship. In my view, whether the matters alleged by the wife are proven is a matter for determination following the testing of evidence at a final hearing. I am not in a position to make any findings of fact at this interlocutory hearing.
On 23 May 2023 the second respondent filed a Notice of Appeal in relation to the orders made 26 April 2023. On 13 June 2023, the Appeal Judicial Registrar made orders that the second respondent’s Notice of Appeal be summarily dismissed.
On 26 June 2023, the second respondent filed an Application in an Appeal to review the orders made by the Appeal Judicial Registrar. That review application was heard by Austin J on 6 July 2023. That day, His Honour made orders as follows:-
1.The Application in an Appeal filed 26 June 2023 is dismissed.
2.The applicant shall pay the first respondent’s party/party costs of and incidental to the review application, fixed in the sum of $3,000.
The second respondent contends that as a result of the conduct of the hearing before me on 21 November 2022 and orders made on 26 April 2023, I should disqualify myself from hearing the matter on the basis of apprehended bias.
DOCUMENTS RELIED UPON
The second respondent relies upon the following documents in support of his application:-
·Application in a Proceeding filed 3 July 2023;
·Affidavit of the second respondent sworn 3 July 2023;
·Outline of Case document dated 3 July 2023 (Exhibit MG-1);
·Outline of Case document (Interim Hearing) in addition to Outline filed 3 July 2023 dated 10 July 2023;
·Transcript of proceedings dated 12 July 2022;
·Transcript of proceedings dated 21 November 2022; and
·Affidavit of the second respondent filed 8 November 2022.
LEGAL PRINCIPLES
The principles to be applied in the determination of an application relating to apprehension of bias were identified by the plurality of the High Court (Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ) in Johnson v Johnson (2000) 201 CLR 488 where they stated as follows:-
11.…It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.” The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
The High Court in the decision Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 identified the test for what constitutes an apprehension of bias at [6] to [8] as follows:-
[6]Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[7]The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
[8]The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
What is the conduct alleged by the second respondent that gives rise to apprehended bias?
The second respondent identified four matters he contends support his application that I be disqualified from hearing the matter on the basis of apprehended bias. They are that:-
·I did not require the wife to amend her Statement of Claim to remove what the second respondent contends are “misrepresentations” contained in that document;
·I failed to make a finding that the wife has no triable claim, having regard to the evidence before the Court;
·During the second respondent’s submissions I questioned him in relation to income earned by an entity controlled by him. He submits that such conduct by me demonstrates an unreasonable suspicion as to his actions, giving rise to an apprehension of bias; and
·My observations as to the manner in which the second respondent presented his case was mocking of him and gives rise to an apprehension of bias.
The second respondent relied upon the decision of the High Court of Australia in Vakauta v Kelly (1989) 167 CLR 568 in support of his application. That case relates to the question of whether a party can waive their right to object to a judicial officer continuing to hear a matter on the basis of bias or apprehension of bias. That issue does not arise in this case. As noted above, the relevant test as to apprehension of bias is clearly articulated in the subsequent High Court decisions of Johnson (supra) and Ebner (supra).
As to the first issue raised, it is the second respondent’s position that the wife’s Statement of Claim dated 19 August 2022 contains misrepresentations, particularly with respect to a mortgage secured against the title to a property at L Street held by an entity controlled by him. As such, he submits that I ought to have made orders striking out that pleading. It is contended by the second respondent that I have permitted those misrepresentations to be made and remain on the Court record, and that I have allowed the wife to pursue what he describes as ‘the fabrication of jurisdiction for the joinder claim’.
In support of that submission, the second respondent relied upon [102] of the Reasons wherein I stated:-
Further, I do not accept the contention that the wife has fabricated the claim with respect to the alleged partnership.
In my view, that complaint is misconceived. Paragraph 102 of the Reasons cannot be read in isolation from the paragraphs around it. At paragraph 101 I found that the wife has particularised her claim, and provide examples of how she had done so. Further, at [103] I state as follows:-
103There is a clear factual dispute between the parties as to the circumstances of the acquisition of property by them or entities controlled by them during the course of the relationship. In my view, whether the matters alleged by the wife are proven is a matter for determination following the testing of evidence at a final hearing. I am not in a position to make any findings of fact at this interlocutory hearing.
It is evident from the material filed on behalf of the husband, the wife and the second respondent, that there is a significant factual dispute between them as to the circumstances in which identified properties were acquired by the second respondent or entities controlled by him. This is set out in detail in the Reasons. Indeed, at [113] of the judgment I noted as follows:-
113As to the outcome of the wife’s claim, that will turn upon the testing of evidence at a final hearing. It is evident from the material filed by the parties that underpinning the wife’s claim is a complex factual matrix, involving a number of entities in which the husband and his brother have held or continue to hold office, and of which in relation to one of those entities, the husband is a specified beneficiary.
From the outset, the second respondent has vehemently maintained that the husband and the wife have no interest in, or entitlement to, his property. He has also contended that the wife has fabricated elements of her claim. Throughout the hearing of the wife’s joinder application, I confirmed to the parties that I was not in a position to make any findings of fact at that interlocutory hearing and that such findings could only be made after a testing of the evidence.
This is confirmed in the Reasons. That I did not accede to the second respondent’s contentions as to the wife’s Statement of Claim at the time of the interlocutory hearing does not, in my view, give rise to any apprehension of bias, particularly given the statements made by me acknowledging the complex factual dispute between the parties and the necessity for findings to be made only after a testing of evidence.
Having regard to my statements as to my inability to make findings at the interlocutory hearing, and as to the need for a testing of evidence, I do not accept the second respondent’s contention that I have pre-determined the matter or failed to approach it with an open mind. Accordingly, I do not accept the second respondent’s contention that my refusal to accede to his request that the wife be required to amend her Statement of Claim is conduct that would invite an apprehension of bias.
The second issue raised by the second respondent is that there was sufficient evidence before me at the hearing of the wife’s joinder application to be satisfied that the wife has no triable claim against him. Accordingly, he submits that the failure by me to dismiss her joinder application at that hearing gives rise to an apprehension of bias.
As noted earlier, I have made no findings as to the assertions made by the wife in support of her claims against the second respondent. During the hearing of her joinder application I informed the parties of my inability to make findings with respect to disputed facts until such time as there has been a testing of evidence. I noted the complex factual matrix pleaded in relation to the acquisition, conservation and improvement of assets acquired by the second respondent or entities controlled by him.
It was the second respondent’s contention at that interlocutory hearing and before Austin J at the hearing of his review application that I ought to have determined the jurisdictional facts in existence prior to making an order that he be joined as a party to the proceedings. That proposition was rejected by me and subsequently, Austin J upon review. Indeed, as was observed by Austin J at paragraph 23 of the judgment dated 6 July 2023, had I not made orders for the joinder of the second respondent as a party to the proceedings, he would have been denied procedural fairness as he would not have been afforded the opportunity to rebut the wife’s contention that she or the husband have interests in property held by him.
I reject the submission of the second respondent that my acceptance that the wife has a triable claim gives rise to an apprehension of bias; that decision does not indicate that I have pre‑determined the matter or that I have failed to bring an impartial mind to the determination of the dispute.
In my view the above complaints by the second respondent appear to be little more than attempts by him to re-agitate his opposition to the wife’s joinder application; on their face, his submissions as to my failure to require the wife to amend her pleadings or dismiss her claim appear to be complaints about the result of that hearing, rather than the manner in which it was conducted.
The third issue raised by the second respondent centres upon an exchange that occurred during the course of the interlocutory hearing on 21 November 2022. In particular he relies on the exchange set out in the transcript at page 75, lines 1 to 46 inclusive which provides as follows:-
[MR M. GENESALIO]: Your Honour, there are documents. There are documents for the times when there was income.
HER HONOUR: All right. So ---
[MR M. GENESALIO]: When there was no income, you don’t have to lodge a tax return ---
HER HONOUR: I understand that.
[MR M. GENESALIO]: --- you don’t have to do anything.
HER HONOUR: So is it your case that there has been no income earned since ---
[MR M. GENESALIO]: Well, I am ---
HER HONOUR: --- 1994?
[MR M. GENESALIO]: I am telling you, your Honour, that the only asset owned by [E Pty Ltd] is vacant land that doesn’t derive rent.
HER HONOUR: Right. So my question to you, and I will repeat it, because you may not have heard it the first time, is it your case that there was no income earned by that entity since 1994?
[MR M. GENESALIO]: Correct.
HER HONOUR: No income?
[MR M. GENESALIO]: No income.
HER HONOUR: Zero.
[MR M. GENESALIO]: Zero.
HER HONOUR: So no returns lodged ---
[MR M. GENESALIO]: No. Zero.
HER HONOUR: --- after 1994?
[MR M. GENESALIO]: Zero. Yes, I – I can’t remember when the final year was, but it wasn’t – there has been no income, your Honour. Yes.
HER HONOUR: So no returns lodged after 1994?
[MR M. GENESALIO]: Correct.
The second respondent submits that this exchange demonstrates that I did not take into account or accept his submissions in relation to the income earned by an entity controlled by him.
I do not accept that submission. The exchange demonstrates that I sought to clarify and understand what was being submitted by the second respondent and no more than that. Indeed, it is evident that once that issue was clarified and the second respondent confirmed that no income tax returns had been lodged after 1994 he then proceeded with the balance of his submissions.
It is incumbent upon a trial judge to ensure that he or she understands the submissions and arguments made by a litigant, particularly in circumstances where a litigant is representing themselves. In my view, the exchange identified by the second respondent is an example of my endeavours to ensure that I understood the case he was putting. I do not accept his contention that the exchange indicates or gives rise to an apprehension of bias by me. Further, the second respondent made no submission as to how that exchange demonstrates or indicates that I have deviated from the course of deciding the application before me on any basis other than on its merits.
The second respondent also contends that I mocked him during the hearing of the wife’s joinder application. In support of that contention, he relies upon the transcript at page 83, lines 12 to 41 inclusive as follows:-
HER HONOUR: So you adopt [Ms EE’s] submissions.
[MR M. GENESALIO]: Now, just quickly, what I would like to take you to, your Honour, I might – I might just go through – okay. Okay. I will start off with this one. Your Honour, I would like to refer – and I would like to hand up – now, I’ve got one copy short, but [Ms EE] ---
HER HONOUR: We can probably arrange to get an additional copy of a document if we need to at the conclusion of the hearing. Probably ---
[MR M. GENESALIO]: This ---
HER HONOUR: You’re definitely at the top of the trees handing up Supreme Court authority, [Mr M Genesalio].
[MR M. GENESALIO]: Well ---
HER HONOUR: I mean I can’t recall the last time a self-represented litigant has done that. So you’re at the front ---
[MR M. GENESALIO]: Your Honour, the reason I hand up a ---
HER HONOUR: You’re at the top of the class.
[MR M. GENESALIO]: Yes. The reason I hand up a Supreme Court is because, in relation to the assertions of a partnership, the partnership is governed by the Partnership Act 1958 in Victoria and your accrued jurisdiction cannot exceed the primary jurisdiction. It has to be limited by the perimeters of the original jurisdiction. You can’t accrue a jurisdiction and then expand on it. It would seem illogical.
During that exchange the second respondent sought to rely upon a decision of the Court of Appeal of the Supreme Court of Victoria. He handed up a copy of the judgment upon which he relied. Following this, I observed that I could not recall the last occasion upon which a self‑represented litigant had done so and further noted that the second respondent was ‘at the top of the class’.
The second respondent submitted that in making those observations I was mocking him. I reject that submission. That I made those observations was a compliment to the second respondent; it is a rare day that a self-represented litigant is so well prepared that they cite precedents from superior courts and further, that they have copies of such judgments to hand up to the judge in support of their submissions.
Following that exchange, the second respondent continued to make detailed submissions in relation to the authority upon which he wished to rely. In my view, the exchange does not give rise to an apprehension of bias by me. The exchange was extraneous to the issues before the Court, and there is no suggestion in that exchange that I would determine the interlocutory application other than on its legal and factual merits. Further, the second respondent fails to articulate how that exchange is connected to any deviation by me from the course of deciding the case other than on its merits. Accordingly, I am not satisfied that that exchange would invite an apprehension of bias by me.
The second respondent’s application was not supported by the husband. In my view, that is significant given that the husband was united with the second respondent in opposing the wife’s application for joinder. The husband raises no complaint as to the manner in which the joinder hearing was conducted, nor does he raise any concerns that the application has been determined by me other than on its merits.
Having regard to the above matters, I do not consider that there is any basis that I recuse myself from hearing these proceedings. Accordingly, the second respondent’s application that I disqualify myself on the basis of apprehended bias is dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 25 July 2023
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