Sarkozy & Sarkozy (No 2)

[2024] FedCFamC1A 176

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Sarkozy & Sarkozy (No 2) [2024] FedCFamC1A 176  

Appeal from:		Sarkozy & Sarkozy [2024] FedCFamC1F 338
Appeal number:		NAA 148 of 2024
File number:	SYC 4887 of 2021
Judgment of:	AUSTIN, WILLIAMS, SCHONELL JJ
Date of judgment:	1 October 2024
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – Where two business days before the hearing of the appeal before the Full Court the appellant filed an application seeking disqualification of two members of the bench – Separate reasons provided by each judge – Where the appellant alleges apprehended bias of a judge in the appeal – Where the appellant failed to articulate how an objective bystander could reasonably apprehend bias of the judge – Application relating to the disqualification of the judge dismissed.
Cases cited:	Sarkozy & Sarkozy [2024] FedCFamC1A 173
Number of paragraphs:	10
Date of hearing:	1 October 2024
Place:	Sydney
Counsel for the Appellant:		Litigant in person
Counsel for the Respondent:		Mr Chegwidden
Solicitor for the Respondent:		Graham Chegwidden Solicitor and Barrister
Counsel for the Independent Children's Lawyer:		Mr Livingstone
Solicitor for the Independent Children's Lawyer:		Marsdens Law Group

ORDERS

NAA 148 of 2024
SYC 4887 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SARKOZY

Appellant

AND:

MR SARKOZY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN, WILLIAMS, SCHONELL JJ
DATE OF ORDER:	1 OCTOBER 2024

THE COURT ORDERS THAT:

1.Intentionally omitted.

2.The appellant’s application for Order 1 within the Application in an Appeal filed on 27 September 2024, in so far as she seeks to disqualify Schonell J from this appellate proceeding, is dismissed.

3.Intentionally omitted.

4.Intentionally omitted.

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 Sarkozy & Sarkozy has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

SCHONELL J:

1. By Notice of Appeal filed 18 June 2024, the appellant appeals all orders made 21 May 2024 by the primary judge. The appeal is listed for hearing today.

2. By email dated 24 September 2024 addressed to the Appeals Judicial Registrar, the appellant set out various reasons as to why I should not hear her appeal. On 27 September 2024, the appellant filed an Application in an Appeal and affidavit in support, addressing the issue of recusal.

3. The portions of the email and affidavit apposite to the application for recusal have been adverted to by Austin J and consequently it is unnecessary to repeat what his Honour has recorded (Sarkozy & Sarkozy [2024] FedCFamC1A 173). The appellant made no further oral submission. The principles relevant to such an application have been clearly set out by Austin J and need no repetition.

4. It is however efficacious to record the extent of my prior involvement is limited to two occasions on which I made procedural orders, none of which were opposed. The first was on 27 October 2023, when I made directions for the preparation of the parenting aspect of the matter for a final hearing to occur before myself on 30 April 2024. Less than a month later, on 23 November 2023, due to changes in the judicial calendar, the parenting final hearing was listed before Aldridge J.

5. I had no further involvement in the parenting aspects of the hearing.

6. Following the delivery of judgement by the primary judge, the matter was listed before me on 4 June 2023 in relation to the financial aspects of the proceedings. On that day I made procedural orders and referred the matter back to a Registrar for case management.

7. The extent of my involvement is limited to what I have referred to above. I am not satisfied that there is any logical connection between those facts and the ‘apprehended deviation’ from deciding this appeal on its merits. Nor do I accept that a fair-minded lay observer fully appraised of all the circumstances might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues I am required to decide in this appeal.

8. Accordingly, I decline to recuse myself.

   WILLIAMS J:

9. I have listened to the reasons for judgment delivered by Schonell J in relation to the appellant’s application to disqualify his Honour from this appeal. I agree with the reasons delivered by his Honour, and the proposed order to dismiss the application for disqualification of his Honour, as filed by the appellant. 

   AUSTIN J:

10. I concur with the reasons of Schonell J.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justices Austin, Williams, and Schonell.

Associate:

Dated:       4 October 2024