Rapallino & Dekker
[2025] FedCFamC1A 18
•12 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Rapallino & Dekker [2025] FedCFamC1A 18
Appeal from: Dekker & Rapallino [2024] FedCFamC1F 462 Appeal number: NAA 204 of 2024 File number: DGC 4162 of 2018 Judgment of: ALDRIDGE, GILL & STRUM JJ Date of judgment: 12 February 2025 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from final property orders – Where the wife asserts the primary judge displayed actual bias – Where aspects of the wife’s appeal are incomprehensible – Appeal dismissed – Written submissions to be filed in relation to costs. Cases cited: Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577; [2006] HCA 55
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
SCVG & Estate of KLD (No 2) (2023) FLC 94-148; [2023] FedCFamC1A 105
Weir & Weir (1993) FLC 92-338; [1992] FamCA 69
Number of paragraphs: 68 Date of hearing: 18 November 2024 Place: Heard in Melbourne, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Tesoriero Solicitor for the Respondent: Berry Family Law ORDERS
NAA 204 of 2024
DGC 4162 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS RAPALLINO
Appellant
AND: MR DEKKER
Respondent
ORDER MADE BY:
ALDRIDGE, GILL & STRUM JJ
DATE OF ORDER:
12 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.Any party seeking an order as to costs is to file and serve written submissions not exceeding five pages on the issue of costs within 14 days. Written submissions in response are to be filed and served within a further 14 days, with any submissions in reply to be filed and served seven days thereafter.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rapallino & Dekker has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, GILL & STRUM JJ:
This appeal concerns final orders for property adjustment made by the primary judge on 11 July 2024. By that judgment the parties’ property interests were divided on a 65/35 division in the appellant wife’s favour.
The appellant was self-represented for a portion of the final hearing, and remained so for the appeal.
Whilst the appellant set out numerous complaints in relation to the judgment, the scope of error that the grounds were directed to was difficult to define.
As identified by the respondent, the bulk of the complaints, whether at face value alleging legal or factual error, appeared to be directed to the proposition that the primary judge was biased against the appellant.
Where not directly claiming bias, these complaints were clothed in assertions suggestive of bias, such as the primary judge “hiding” evidence, or making errors that “support” the lawyers for the respondent.
Where the grounds were purportedly of legal error, they relied on the manner of application of the principle, at no point identifying that the primary judge failed to comprehend or express correct legal principle.
Where the grounds alleged error in fact, the grounds lacked either a correct identification of the finding made, or where the finding was correctly identified, failed otherwise to demonstrate how the finding was not correct on the evidence presented. Where the purported error of fact was raised to establish bias, the appellant failed to demonstrate why it should be concluded that the purported error was the product of bias.
Where the bias grounds were directed to procedural determinations, they failed to challenge the correctness of the procedural ruling, or to identify what it was about the ruling that indicated that the ruling was grounded in bias.
It is convenient to consider the grounds, insofar as they were ultimately pursued by the appellant, in the order in which they were set out in her Notice of Appeal and Summary of Argument.
PRINCIPLES
It is necessary to deal with the allegations of bias as the first matter, as an allegation of the reasonable apprehension of bias, or as here, of actual bias, is a matter that goes to the jurisdiction of the Court. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65 at [26], Kiefel CJ and Gageler J identified that issues of bias are to be considered:
… [W]ithin the framework established in Ebner [v Official Trustee in Bankruptcy]. Foundational to that framework are two propositions. One is that impartiality is an indispensable aspect of the exercise of judicial power. The other is that “[b]ias, whether actual or apprehended, connotes the absence of impartiality”. Leaving to one side exceptional circumstances of waiver or necessity, an actuality or apprehension of bias is accordingly inherently jurisdictional in that it negates judicial power.
(Footnotes omitted)
Accordingly, as identified by Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577 at [117]:
… An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided…
The appellant asserts actual bias on the part of the primary judge. She does so without having raised any such issue during the trial and, in large part, is reliant upon either the terms of the judgment itself or on the circumstances of its release to the parties.
As we have indicated above, given the interspersing and conflating with other grounds, the various allegations of bias will be examined as they arise on the appeal grounds in order. However, they will then be dealt with first on the conclusion of the judgment.
As to the balance of matters raised by the appellant, insofar as they allege errors of fact, in accordance with the Full Court’s statement in SCVG & Estate of KLD (No 2) (2023) FLC 94-148 at [84], it is for the appellant “to persuade this Court that the primary judge erred in the conclusions … reached on the material.” This requirement is the process by which an intermediate appeal court discharges the obligation, set out by the High Court in cases such as Lee v Lee (2019) 266 CLR 129 (“Lee”) at [55], to “conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the primary judge has erred in fact or law.” As identified by the High Court in Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 (“Robinson Helicopter”) at [43], should an intermediate court of appeal, hearing the appeal by rehearing, conclude that the primary judge erred in fact, then “it is required to make its own findings of fact and to formulate its own reasoning based on those findings.” However:
… [A] court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences.” …
(Footnotes omitted)
In Lee at [55], the High Court observed this restraint to apply to “factual findings which are likely to have been affected by impressions about credibility and reliability of witnesses formed by the primary judge as a result of seeing and hearing them give their evidence.” Such considerations, and accordingly such restraint, apply to many of the factual findings in this case.
Insofar as the appeal grounds allege errors of law, again, in accordance with Robinson Helicopter and Lee, it is for the appellant to demonstrate error.
Before examining the grounds more closely, it is important to note that much of the complaint raised by the appellant was on the basis that the primary judge determined matters unfavourably to her, allied to the contention that the unfavourable nature of the determinations pointed to bias on the part of the primary judge.
GROUNDS OF APPEAL
Ground One
The first ground is simply as follows:
Actual Bias
The test for actual bias requires the appellant to establish that the judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]).
The relevant principles were helpfully summarised in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68] and [70]:
68.A finding of actual bias is a grave matter. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required.
…
70. As Gleeson CJ and Gummow J observed in that case at [71]:
“The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”
(Citations omitted)
The appellant’s own perception of the primary judge’s conduct is not sufficient to establish bias and neither is the fact that the proceedings have not gone the way the appellant believes they should have.
This ground pointed to the emailing of the judgment, on its publication, to a number of email addresses (including to multiple lawyers in the employ of the respondent’s solicitors), in circumstances where the appellant was unaware of how those addresses were identified by whoever emailed the judgment. Pointing to the impropriety of any unilateral contact with judges’ chambers, the appellant asserted that she had not been a part of correspondence with chambers that identified such email addresses.
Having made the complaint, the appellant described the issue as “no big deal” and further that she wondered why such addresses had been included, a response indicative of the speculation with which the ground was clothed. No link was made between the primary judge and the administrative selection of the email addresses.
In her Summary of Argument the appellant suggested that the sending of the email was, in combination with her assertion that the settlement sum received by the respondent tallied with his legal fees, such as to make it “obvious that the judge was doing a [favour] to [the respondent’s solicitors].”[1]
[1] Appellant’s Summary of Argument filed 11 October 2024, paragraph 2.
This scandalous suggestion was the product of nothing more than rank speculation on the part of the appellant.
Supplementing the claim of bias, the appellant asserted that the primary judge, in concluding that the appellant had engaged in significantly undervalued disposals of real property to her sister, and had ignored contractual documents that supported the transaction.
One aspect of the transfers of these properties that attracted the primary judge’s attention was the claim by the appellant that while she entered into the contracts for sale in 2018, the settlement with her sister did not occur until 2021. The primary judge described a lack of corroborative evidence in support of the appellant’s contentions that the sale was effected prior to 2021 as claimed by the appellant.
The appellant criticised such a description of lack of corroborative evidence, observing that contracts for the sale of the real property, entered into in 2018, were tendered into evidence by the respondent at trial.
However, contrary to the appellant’s assertion, these contracts were not ignored by the primary judge.
What was identified by the primary judge was a lack of evidence of concluded sales occurring in 2018, or of “terms contracts entered into in 2018.” (at [102]). This was correct. The contracts did not contain terms providing for a delayed settlement. There was no evidence of a concluded sale in 2018.
Further, the primary judge correctly observed that the failure on the part of the appellant to call her sister, with whom she had purportedly entered into the contracts for sale of the properties, gave rise in the circumstances of the case to a Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) inference being drawn.
Contrary to the appellant’s contentions as to bias, this did not result from some sort of hiding of evidence by the primary judge. Rather, in a context where the appellant had asserted a previously undisclosed oral agreement with the sister, where the contracts failed to explain the asserted delayed settlements, and where the sister who had received the properties and formed the other party to of the impugned transactions was in court during the proceedings, there was a legitimate expectation that she would be called by the appellant to support the appellant’s controversial contentions. She was not called. Although the appellant sought to place responsibility upon the respondent for the absence of evidence from the sister, as he failed to join the sister as a party, such does not detract from the circumstances that supported the drawing of an inference that the sister’s evidence would not have supported the appellant’s case, as drawn by the primary judge at [76].
Although the appellant styled the primary judge’s Jones v Dunkel reasoning as an attempt by the primary judge to rectify an error made by the respondent’s solicitors, and hence an example of bias, no inference is available to support the notion that the primary judge was providing assistance to the respondent’s lawyers.
Although the appellant construed a refusal on the part of the primary judge to allow her to rely upon certain material filed outside of the trial directions (noting that the appellant had filed a primary trial affidavit within the extended time that she was given to do so, and then sought to rely upon two further affidavits produced shortly prior to the trial commencing) as the hiding of evidence, no inference is available that the primary judge’s refusal was linked to an intention to hide evidence. No challenge is made to, or error identified in, the decision by the primary judge to refuse the appellant leave.
Although in her Summary of Argument the appellant claimed a failure on the part of the primary judge to deal with a purported non-production by the respondent’s solicitors pursuant to a subpoena, this was abandoned by her at hearing of the appeal.
The appellant then makes a range of factual assertions as supportive of her claim of bias. What appeared to underlie this use of the factual allegations was that somehow the primary judge had got them wrong.
Two difficulties emerge from this approach. The first is that even if the primary judge was shown to have made factual conclusions in error, such does not establish bias. The second is that the appellant has failed to establish that those factual conclusions were in error.
The appellant also relied upon the primary judge’s treatment of the appellant’s motor vehicle as indicative of bias. The primary judge said at [83] that the parties had agreed that there should be no adjustment in respect of their motor vehicles and bank accounts, each being asserted of little, if any, net value. The primary judge accepted that such an approach was “entirely appropriate, just and equitable.” The primary judge was correct to deal with these assets in such a manner, and neither error, nor any implication of bias, is made out by the appellant.
The appellant made various complaints regarding the primary judge’s assessment of her credibility. At [72] the primary judge described the appellant as both a “poor historian” and as a witness who “tended to embellish her evidence when she considered that it suited her case.” This led the primary judge to prefer the respondent’s evidence where they conflicted, although not universally, as her Honour rejected a number of factual contentions pursued by the respondent. The matters raised by the appellant neither demonstrate that the primary judge was wrong in her conclusions or approach to credibility, nor that her conclusions were the product of, or indicative of, bias.
Ground Two
The second ground is as follows:
“Lot of Factual Error’s that support [the respondent’s solicitors]”
(As per the original)
No material factual error was established by the appellant. To the extent that the appellant relied on factual findings as indicative of bias, none is demonstrated.
Ground Three
The third ground is as follows:
Hiding Evidence/not acknowledging existing solid evidence and confirmatory evidence when adding back notional properties and
(As per the original)
This appeared to be directed toward the primary judge’s determination that the appellant had disposed of real estate at an undervalued price to her sister. No error is demonstrated in the primary judge’s conclusions as to the circumstances of the disposal to the sister being significantly undervalue.
Ground Four
The fourth ground is as follows:
Unjust and unreasonable decision and not an equitable division of property and claiming appropriate division after incentivising deceit , fraud , unconscionable conduct, no financial contribution when able to and claims of non - financial contributions were made up which were exposed.
(As per the original)
This ground was incomprehensible, and failed to identify error on the part of the primary judge, in either her Honour’s approach or conclusion.
Ground Five
The fifth ground is as follows:
Judge assumed an existing valid contract will not come to fruition. It was considered a financial resource and when it was a liability.
(As per the original)
This appeared to be a reference to the primary judge’s conclusions in relation to a property held by the wife’s family located in Country B at [35]. The primary judge accepted the evidence of the appellant. This included acceptance of the possibility that the appellant may lose a deposit that she paid in relation to this property prior to her marriage to the respondent. Accepting that the appellant may never acquire the property in a manner favourable to her, the primary judge declined to treat it as a financial resource in the hands of the appellant. Error is not demonstrated.
Ground Six
The sixth ground is as follows:
The negative contributions of [Mr Dekker] not acknowledge.
(As per the original)
This ground identifies no error. The Summary of Argument relied upon the proposition that comments made by another judge in interlocutory proceedings constitute evidence that the primary judge ignored. Comments made by a judge in interlocutory proceedings do not constitute a form of evidence, or a finding that would bind the primary judge. The appellant’s reliance upon such comments (even if accurately recited) is misplaced.
Ground Seven
The seventh ground is as follows:
The non contributions when able to was not acknowledged.
(As per the original)
No species of error was identified by this ground.
Ground Eight
The eighth ground is as follows:
Judge assumed that nothing was arduous without applying Kennon V Kennon.
(As per the original)
There was no such error on the part of the primary judge, as the issue of whether the appellant’s contributions were rendered significantly more arduous by the respondent engaging in family violence was considered by the primary judge at [116] – [118], rather than assumed as asserted by the appellant. The primary judge’s conclusion as to such has not been demonstrated as in error.
Ground Nine
The ninth ground is as follows:
Wrong application of John V Dunkel in the presence of solid and confirmatory evidences. By hiding evidence and making factual error to put burden of proof on myself, affecting appellant substantial rights and burdening with unjustifiable debt.
(As per the original)
No error in the manner of application of the principles in Jones v Dunkel has been identified. To the extent that this ground relied upon the non-production of material pursuant to a subpoena directed to the respondent’s solicitors, the appellant withdrew such a contention.
Ground Ten
The tenth ground is as follows:
Wrong application of Weir and Weir as all disclosures were made by [Ms Rapallino] 1000+ pages while [Mr Dekker’s] disclosure was 14 pages and John V Dunkel does not apply here.
(As per the original)
The reference to Weir & Weir (1993) FLC 92-338 appears at [89] of the judgment. There the primary judge is dealing with the state of the evidence adduced by the appellant in relation to her transfers of multiple properties at an undervalue to her sister. This was also the matter regarding which the primary judge made reference to Jones v Dunkel, at [74] (also drawing such an inference adversely to the respondent in relation to another claim made by him). The consequence was that the primary judge determined that she would not be unduly cautious in making favourable findings toward the husband in respect of these transactions.
The primary judge, at [84]–[88], particularised the nature of the non-disclosure. No error has been identified in relation to the primary judge’s conclusions as set out here in respect of that non-disclosure, nor as to how the primary judge’s recital of principle was wrong (it was not).
Ground Eleven
The eleventh ground is as follows:
All documents submitted by [Ms Rapallino] since commencement of the trial was dismissed whereas all late documents submitted by [Mr Dekker] was accepted.
(As per the original)
No error has been identified in the primary judge’s determination of what documents should be permitted to be relied upon in the proceedings.
Ground Twelve
The twelfth ground is as follows:
Rees V Bailey Aluminium products Pty ltd is not mentioned even after [the respondent’s solicitors] influenced my lawyers and they were acting for [the respondent’s solicitors] instead of me.
(As per the original)
The assertion that the appellant’s lawyers were working for the respondent’s lawyers is unsupported and, indeed, is scandalous in the circumstances.
Ground Thirteen
The thirteenth ground is as follows:
Matter of public interest, as court supports business development hiding cogent evidence to promote family law business rather than administering justice to general public and without giving any value for their hard-earned wealth.
(As per the original)
This ground identifies no recognisable ground of appeal. The appellant’s submissions contained in her Summary of Argument contain scandalous and unsupported allegations of the primary judge “[h]iding” evidence and “strategically placing errors to create an illusion of justice.”[2] None of these contentions were made out. To the extent that the appellant claimed that there was a coincidence between the costs of the respondent's lawyers and the award made in his favour, it has not been made apparent that the amount of costs was even before the primary judge.
[2] Appellant’s Summary of Argument filed 11 October 2024, paragraph 69.
CONCLUSION
The appellant has failed, either on any individual allegation, or on the case as seen as a whole, in her serious allegation that the primary judge acted with actual bias. There is no matter, or collection of matters that are suggestive that the primary judge acted other than impartially.
Insofar as the grounds otherwise suggested legal or factual error by the primary judge, the appellant has at each point failed to demonstrate error.
The appeal will be dismissed.
COSTS
As indicated at the conclusion of the hearing of the appeal, orders will be made providing for the filing of written submissions regarding costs in relation to the appeal.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Gill & Strum. Associate:
Dated: 12 February 2025
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