Genesalio & Genesalio (No 2)

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

1. 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).

2. 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).

3. By Application in a Proceeding filed 3 July 2023 the second respondent sought the following relief:-

   1.Stay the orders made…