Henley & Bestari

Case [2024] FedCFamC1A 12

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Henley & Bestari [2024] FedCFamC1A 12

Appeal from: Bestari & Henley (No 5) [2023] FedCFamC1F 783
Appeal number: NAA 285 of 2023
File number: CAC 2301 of 2021
Judgment of: MCCLELLAND DCJ, TREE & WILLIAMS JJ
Date of judgment: 21 February 2024
Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Recusal – Where the primary judge was exposed to proposed property settlement orders which materially deviated from the formal position of both parties – Where an application for recusal was made and later refused by the primary judge – Consideration of the second step of the test outlined in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where from the perspective of the fair-minded lay observer, knowledge of the proposed settlement orders and balance sheet might affect the primary judge’s future assessment of the evidence and the discretionary exercise of determining any adjustments to the parties’ property – Error identified.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought an extension of time to seek leave to appeal – Where a substantial injustice would be suffered by the appellant if he were denied the opportunity to prosecute a meritorious appeal – Leave to appeal granted – Appeal allowed.

Legislation:

Family Law Act 1975 (Cth) Pt VIII, s 79

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Federal Proceedings (Costs) Act 1981 (Cth) s 9

Federal Court andFederal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited:

1           Bestari & Henley (No 3) [2023] FedCFamC1F 725

Bestari & Henley (No 4) [2023] FedCFamC1F 726

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Moorcroft & Moorcroft (2018) FLC 93-881; [2018] FamCAFC 253

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369; [2023] HCA 15

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Silva & Phoenix (2018) FLC 93-825; [2018] FamCAFC 41

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Watson & Watson (2013) FLC 93-530; [2013] FamCAFC 25

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Number of paragraphs: 51
Date of hearing: 2 February 2024
Place: Heard in Melbourne (via video link), delivered in Sydney
Counsel for the Appellant: Mr Beaumont SC and Mr Macauley
Solicitor for the Appellant: Abbott Delaney Lawyers
The Respondent Submitting Notice filed 22 November 2023

ORDERS

NAA 285 of 2023
CAC 2301 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR HENLEY

Appellant
AND:

MS BESTARI

Respondent

ORDER MADE BY:

MCCLELLAND DCJ,…

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Henley & Bestari [2024] FedCFamC1A 12
Case
[2024] FedCFamC1A 12
Decision Date

CaseChat Overview and Summary

In the case of Henley & Bestari, the appellant, Mr Henley, appealed against orders made by the Federal Circuit and Family Court of Australia, which were related to property settlement proceedings between the parties. The dispute centred on whether the primary judge should have recused himself due to his exposure to proposed property settlement orders that deviated from the formal positions of both parties. Mr Henley argued that the primary judge's exposure to these orders could have influenced his assessment of the evidence and his discretionary decision-making process. The court was required to determine if the primary judge's impartiality could be reasonably questioned, considering the second step of the test from Ebner v Official Trustee in Bankruptcy. The court found that the primary judge's knowledge of the proposed settlement orders and balance sheet could potentially affect his future assessment of the evidence and discretionary exercise, leading to a legitimate apprehension of bias.

The court further addressed the appellant's application for an extension of time to seek leave to appeal and the grant of leave itself. The appellant argued that denying him the opportunity to prosecute a meritorious appeal would result in substantial injustice, as he might face a costly and potentially futile property trial. The court agreed and granted leave to appeal, subsequently allowing the appeal due to the identified error of law concerning the apprehension of bias. The court also granted the appellant a costs certificate for the appeal under the Federal Proceedings (Costs) Act 1981. The appeal resulted in the setting aside of certain orders and the remitting of the property settlement dispute for rehearing by a different judge.

In conclusion, the court granted the appellant an extension of time to seek leave to appeal and allowed the appeal. It set aside specific orders made by the primary judge, remitted the property settlement dispute for rehearing by a different judge, and granted the appellant a costs certificate for the appeal. The court further directed the appellant’s solicitors to request the removal of certain documents from the Court file. This decision ensures that the appeal process is fair and just, addressing the legitimate apprehension of bias and the procedural fairness of the original proceedings.

Orders

Orders of the court

NAA 285 of 2023

CAC 2301 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HENLEY

Appellant

AND:

MS BESTARI

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, TREE AND WILLIAMS JJ,

DATE OF ORDER:

21 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The appellant is granted an extension of time until 20 December 2023 to seek leave to appeal.

2. Leave to appeal is granted.

3. The appeal is allowed.

4. Order 2 of the orders of the Federal Circuit and Family Court of Australia (Division 1) made on 14 September 2023 is set aside.

5. The property settlement dispute contained in proceedings CAC 2301 of 2021 is remitted for rehearing by a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.

6. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

NOTATION

A. The appellant’s solicitors will correspond with the Court to seek the following documents be removed from the Court file: reasons for judgment delivered by the primary judge on 23 August 2023 (Bestari & Henley (No 3) [2023] FedCFamC1F 725) and 14 September 2023 (Bestari & Henley (No 5) [2023] FedCFamC1F 783), Exhibits C2 (Proposed Property Orders), C4 (Schedule of Property) and C5 (Amended Property Orders), the appellant’s written submissions filed 31 August 2023, the transcript of the proceedings before the primary judge on 21, 22 and 23 August 2023, and the appellant’s Case Summary in the appeal filed 20 December 2023.

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

For the reasons that follow, leave to appeal will be granted and the appeal will be allowed.BACKGROUND The extant underlying proceedings comprise an application for property settlement orders between the parties under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). The parties previously resolved, by consent, parenting proceedings. On 21 August 2023 (day one), the final hearing of both property and parenting proceedings was listed before the primary judge. Rather than commence the hearing of the substantive property proceedings or the respondent’s adjournment application, his Honour appropriately afforded the parties an opportunity to engage in settlement discussions. The parenting proceedings were settled around midday. By early afternoon, the primary judge was advised the parties had an agreement in principle to settle property proceedings but required further time to document the agreement. On the afternoon of 22 August 2023 (day two), final proposed parenting orders were made by the primary judge, and his Honour was provided with proposed property settlement orders. The proposed orders were not made by the primary judge because he was concerned some of them might be “uncertain in their effect”,[1] and may “offend against Stanford”.[2] It is accepted that was a reference to the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) which held that, pursuant to s 79(2) of the Act, before making a property adjustment order, the Court must first consider whether it is just and equitable to make the order. If the Court is so satisfied, the Court is then required to identify the existing legal and equitable interests of the parties in property. The parties were given time overnight to address his Honour’s concerns.[1] Transcript 22 August 2023, p.33 line 9.[2] Transcript 22 August 2023, p.37 line 9. On 23 August 2023 (day three), the primary judge was informed the parties had “achieved a lot”,[3] and was provided with a balance sheet entitled ‘Schedule of Properties’ which was marked as Exhibit C4. The primary judge informed counsel he had “looked at the schedule of property” and proposed to “read the joint written submissions”.[4] Prior to the Court adjourning, counsel for the respondent informed the primary judge “if we can’t settle this, your Honour would have to recuse yourself at this point, unless we agreed that you continued with it, on the basis that we stuck to the percentages”.[5][3] Transcript 23 August 2023, p.44 lines 1–2.[4] Transcript 23 August 2023, p.44 lines 24–25.[5] Transcript 23 August 2023, p.45 lines 6–8. Around mid-morning on day three, the primary judge advised counsel that having read the parties joint submissions, it was a “futile process” to continue executing proposed settlement minutes, refused to make consent orders, and delivered reasons:[6] Bestari & Henley (No 3) [2023] FedCFamC1F 725. Relevantly, his Honour held that there remained uncertainty as to the effect of the orders which precluded him from making the determination required by Stanford (at [6]).[6] Transcript 23 August 2023, p.45 46 line 15 and line 19.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, the appeal must be allowed.CONCLUSION AND COSTS As noted earlier, given the merit of the appeal it is necessary to return to the question of leave. We are satisfied that substantial injustice would be suffered by the appellant if he were denied the opportunity to prosecute a meritorious appeal. If leave were not granted, he would possibly face a relatively expensive property trial, the time and costs of which would be wasted if there is a subsequent finding of a legitimate apprehension of bias. Leave to appeal will be granted, and the appeal allowed. If the appeal succeeded, the appellant sought a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). As the appeal succeeds on an error of law, the appellant is granted a costs certificate in relation to the appeal.

Ratio Decidendi

Legal Principle Established

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