Scott & Munayallan (No. 3)
[2021] FamCA 617
•13 August 2021
FAMILY COURT OF AUSTRALIA
Scott & Munayallan (No. 3) [2021] FamCA 617
File number(s): SYC 59 of 2010 Judgment of: HENDERSON J Date of judgment: 13 August 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for disqualification and adjournment of the proceedings listed for final hearing in September 2021 – Where the husband has ongoing proceedings in the Supreme Court which, when finalised, may impact upon the value of the matrimonial pool – Where the husband alleges apprehension of bias arising out of past decisions – Discussion of relevant principals – Application for disqualification dismissed – Application for adjournment of the final hearing dismissed. Cases cited: Clenae Pty Ltd and Ors v Australia and New Zealand Banking Group [1999] VSCA 35
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hartnett & Sampson [2008] FamCA 75
Johnson v Johnson (2000) 201 CLR 488
Karadaghian v Big Beat (Australia) Pty Ltd (No 3) [2014] NSWSC 1691
Michel v The Queen [2010] 1 WLR 879
R v Watson; Ex Parte Armstrong (1976) 136 CLR 248
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128
Number of paragraphs: 39 Date of hearing: 12 August 2021 Place: Sydney The Applicant: Self-Represented Litigant Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYC 59 of 2010 BETWEEN: MR SCOTT
Applicant
AND: MS MUNAYALLAN
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
13 AUGUST 2021
THE COURT ORDERS THAT:
1.The husband’s application for my disqualification from further hearing these proceedings be dismissed.
2.The husband’s application for an adjournment of the final hearing in this matter be dismissed.
3.The costs of each party of this hearing be reserved to the final hearing.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scott & Munayallan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HENDERSON J:
This is two applications by Mr Scott, the husband in these proceedings, and father.
The first was I disqualify myself from hearing the final property and parenting matter listed for four days on 27 September 2021 and, secondly, I adjourn the proceedings in the Family Court due to continued and ongoing litigation in the Supreme Court, some of which involves Mr Scott, but the consequences of which may have an impact on the value of the matrimonial pool.
Mr Scott was self-represented and Ms Warda represented the mother. The mother resists both applications.
The material I read for Mr Scott was:
(1)Amended Application in a Case;
(2)Affidavits of 11 August 2021 and 20 April 2021. Despite requesting he file one consolidated affidavit he did not and I read two for his case, and annexures to those documents;
(3)Together with the documents he listed in his quite helpful case outline filed around about 2 August 2021 which included:
(a)A letter of complaint he has written to the Attorney General, Minister for Industrial Relations Christian Porter, on 5 February 2021;
(b)A letter of complaint to the Chief Justice of 25 June 2021.
(4)An appeal filed of a decision of mine which was dismissed out of time, being an appeal from decisions I made from July 2020 together with other annexures to his affidavit;
(5)His case outline dated 2 August 2021 was helpful;
(6)I also read a transcript or part of a transcript of Supreme Court proceedings in relation to Mr Scott and Mr Phong in mid-2021 before Brereton JA.
Ms Warda’s client filed an affidavit on 23 July 2021 and I heard her submissions.
Dealing with the disqualification application first. There is voluminous case law on applications in relation to a judge disqualifying themselves from hearing a matter and Mr Scott, himself, set out many of those important decisions in his case outline. The first decision he referred to was a decision of Karadaghian v Big Beat (Australia) Pty Ltd (No. 3) [2014] NSWSC 1691, a decision of Rothman J where he found that, in a matter where there had been multiple applications in a case and credit findings, a judicial officer should disqualify themselves on the basis of potential apprehend bias, that the reasonable observer would not believe the judge would bring a fair mind to the trial.
Mr Scott referred to the matter of Clenae Pty Ltd and Ors v Australia and New Zealand Banking Group [1999] VSCA 35. At page 9 of his case outline, he refers to what he calls the principles in disqualification applications and, in particular, the High Court’s decision in Johnson v Johnson (2000) 201 CLR 488 where he says the Court at paragraph 11 succinctly summarises the principles for apprehended bias as follows:
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.
I have also referred to and taken note of a decision of Moore J in Hartnett & Sampson [2008] FamCA 75 where her Honour said at [13] the test is: “…whether a fair-minded observer would conclude that the judge had formed opinions which might affect [their] determination of outstanding matters” and a decision of R v Watson; Ex Parte Armstrong (1976) 136 CLR 248, a 1976 decision where the High Court again laid out principles at [15]:
The view that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he [she in my case] was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle…It is of fundamental importance that the public should have confidence in the administration of justice.
That is an extremely important principle. Mr Scott referred to the decision of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 wherein the Court held at [20]:
In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification.
Similarly, I have taken note of a decision of Basten JA of the NSW Supreme Court of Appeal in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [17] where his Honour quoted Lord Brown in the Michel v The Queen [2010] 1 WLR 879 as follows:
“Of course [a judge] can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.”
Mr Scott appears to be quite well aware of these principles to his credit. It appears from Mr Scott’s submissions, and having read his material and the cases he has referred me to, he does not assert there has been actual bias, rather, more an apprehension of bias, particularly by decisions I have made as opposed to any conduct on my part.
Those decisions are two; the first is a decision I made involving himself and Mr Phong published in February 2021 and, secondly, a decision in relation to parenting proceedings on 9 and 10 July 2020 where I, ultimately, issued a recovery order for the return of one of the parties’ children who was then in the care of Mr Scott to the mother.
Mr Scott’s submission on that second matter was that “I had overstepped myself”. I think that is correctly citing his submission.
Going to the recovery order matter. When I issued the recovery order, I ceased his time and listed the issue of resumption of the father’s time before Senior Registrar Campbell on 16 September 2020 for hearing.
Ultimately, that matter was dealt with by Senior Registrar Campbell in March 2021. Mr Scott’s time has resumed with his children but it is a lesser period of time than Berman J ordered in a final hearing and judgment he delivered on 15 August 2019.
Going to the application of bias and the judgment between Mr Scott and Mr Phong.
On 26 February 2021, I delivered a judgment wherein I upheld a review sought by Mr Scott of a Registrar’s decision in relation to a taxation of cost between Mr Phong, Mr Scott and I Pty Ltd. As I apprehend it, that matter is still continuing.
I dismissed his various applications to vary Berman J’s orders of 23 October 2019, being orders 1 and 1(b), or to stay those orders and to set aside the orders made by Berman J on 18 June 2019 and 2 August 2019. In essence, the basis of Mr Scott’s allegations and case at that time was that the Court had made orders on evidence from Mr Phong and that Mr Phong was fraudulent in the evidence he gave and, therefore, the orders ought be set aside on the basis of fraud. Mr Scott asserts at his case outline at paragraph 22, in relation to my decision:
On the 19 February 2021, Justice Henderson delivered a judgement [sic]. I refer to paragraph 104 (3) of that judgment which states;
[“]104. I find these assertions were raised by Mr Scott and I Pty Ltd for an ulterior motive, namely:
[…]
(3) To thereby delay the wife being able to obtain her entitlement as to property.[”]
Going to my decision, paragraph 104, I found as follows:
104 I find these assertions were raised by Mr Scott and I Pty Ltd for an ulterior motive, namely:
(1) To re-litigate a decision they disagreed with and which had been finalised in a decision of the Supreme Court of New South Wales;
(2) To appeal against Justice Berman’s orders; and
(3) To thereby delay the wife being able to obtain her entitlement as to property.
There is no bias or apprehension of bias in the findings I made on the facts contained in the judgment. Mr Scott did not appeal this decision. The fact that he, to use his words, says “The father disagrees with Justice Henderson[’s] point of view” does not support an apprehension of bias or any reason why a fair-minded person reading my judgment would form the view that I would not bring an impartial or fair mind to subsequent proceedings in which Mr Scott is involved. There was no complaint by Mr Scott regarding how the matter was run or conduct during the trial. Mr Scott disagrees with my decision and findings, as he is entitled to do. But no more. There is no apprehension of bias in that decision.
Going now to the parenting issues.
Mr Scott said in issuing a recovery order and suspending his time, I overstepped as I only relied upon the mother’s oral evidence and not written evidence. This is not unusual in a parenting matter, particularly where a recovery order is sought. The father later tendered documentation from the medical centre and doctor showing, he says, that the mother had not told the truth and that I should have conducted a hearing after this recovery order to validate or otherwise the mother’s evidence. I did not do that, that is, conduct a hearing in relation to resumption of time, for the very reason that I was in the throes of preparing this matter for final hearing in relation to property, that then being the only outstanding issue, and I was concerned to not put myself in a position to make credit findings in relation to either party given I wanted this matter to proceed to hearing as soon as possible on the outstanding issue of property.
Thus I left that determination and issue to another judicial officer. I listed the matter before the Senior Registrar for hearing on 16 September 2020. That date was vacated at the request of Mr Scott and the Senior Registrar listed it again in November. In November I believe there was a change of lawyer or different application – perhaps a combination of both – put by Mr Scott and the hearing had, again, to be adjourned. Ultimately, the Senior Registrar conducted a final interim hearing on 30 March 2021 and the father’s time with his children recommenced.
I issued a recovery order to lie in the Registry on 9 July 2020 and only activated that recovery order on 10 July 2020. I issued it to lie in the Registry on 9 July to give the husband an opportunity to return his daughter to her mother so that I did not have to issue the recovery order, which he refused to do, seeking, rather, a stay of the orders I made, which I refused. I made no findings at all against the father, rather, was enforcing existing orders of the Court. There is no bias, apprehension of bias against the husband demonstrated in the recovery order application, nor is pleaded by Mr Scott in his affidavit or his materials. He disagrees fundamentally with the decision I made and the material I relied upon in my decision but does not say I was biased against him or prejudged the matter or in some way did not entertain his application.
The fact is the recovery order was issued as a consequence of the husband not agreeing to return the child. That is the basis upon which I issued that order. If the mother gave false evidence to the Court on that occasion, that may now be raised by Mr Scott and determined at the final hearing. If I was in error in my reading of the existing orders or the material that I relied upon, that too, if raised by Mr Scott, can be determined at a final hearing. I note Mr Scott did file an appeal out of time in relation to the recovery order, and his application to file an appeal out of time was dismissed.
The husband’s evidence in relation to both counts as I read his material, his case outline, and his affidavits and annexures, would not cause a fair-minded lay observer to be concerned that I, the judicial officer, would not bring a fair and objective mind to the determination of the issues before the Court at the final hearing which is the entitlement of each of the wife and the husband to their property, and whether the orders made Berman J on 15 August 2019 in relation to the children be reinstated, as Mr Scott seeks, or the interim orders made by Senior Registrar Campbell in March 2021 continue as the final orders, as the mother seeks.
Going now to the husband’s application that I adjourn the proceedings in the Family Court. There are, currently, two cases to be concluded in the Supreme Court involving Mr Scott at some level.
The first matter is Mr Scott’s application seeking leave to appeal Sackar J’s decision that he pay some $400,000 to Mr Phong by way of costs from the $2 million currently held in the Supreme Court, which money is part of the husband and wife’s matrimonial pool, in the Family Court proceedings. That matter was before the Supreme Court in mid-2021, but only recently disclosed to the Court. That issue, that is, his leave to appeal, is yet to be listed but it is likely to be listed for hearing this year. Mr Scott’s evidence was it would take half an hour, it would not be long, and he would either fall or rise on that application.
The second case before the Supreme Court involves Ms Scott, a relative of Mr Scott, and I Pty Ltd, in which each seek money from Mr Scott totalling about $1.5 million for sums they say they advanced to him to buy the property, the subject of the dispute between Mr Scott and Mr Phong. This matter is listed for a directions hearing in September 2021, and a final hearing in December 2021 for five days, in early December, from memory.
There is, as I said, some $2 million in trust with the Court after a finalisation of the Supreme Court action involving Mr Scott, I Pty Ltd and Mr Phong. That is the most significant asset in the parties’ matrimonial pool. There is no doubt the applications by Ms Scott and I Pty Ltd, if successful, and Mr Phong’s costs approaching $400,000, would deplete the pool to some $100,000. For it is Mr Scott who is liable to pay these amounts, and not the wife. Sackar J ordered Mr Phong’s costs be paid from the money held by the Supreme Court. Thus, the outcome of these actions will have impact on the matrimonial pool. As Brereton JA said in the transcript, at page 39:
How’s the Family Court going to [crystallise or know]…what the [matrimonial pool] is until the I Pty Ltd claim is resolved?
As always, his Honour is entirely correct.
Ms Warda’s submissions were that the way forward in this matter – both as to efficiency and use of court time, and minimising costs for the parties – was as follows. She asserted, and she is correct, whether I stay the hearing now listed before me or not there will be a second hearing in this Court. There will be a hearing in the Family Court at some point in time in relation to the outstanding issue of property and parenting. The current hearing is well on the way to being prepared to be ready to run on the week of 27 September. The wife’s material is finalised and will be filed shortly.
Parenting issues are not impacted upon by the Supreme Court proceedings. In relation to property, the Court can still, pursuant to section 79 of the Act, even in the absence of a certain matrimonial pool, assess the parties’ contribution-based entitlement for their past endeavours including parenting and homemaking, pre and post separation, to the pool.
The Court can assess their needs into the future without being entirely certain of the pool. I accept that the size of the matrimonial pool ultimately would also be relevant to a final assessment of their needs under section 75(2) of the Act, for the Court would want to know what the parties were receiving by way of assets as part of the determination of their future needs.
What I could not do at the hearing, and at this stage in late September, is determine what each is to receive, as I may not know the value of the pool at that time. However, it is apparent what is left of the moneys in the Supreme Court will be known sometime this year and this is highly likely, on Mr Scott’s own evidence. In these circumstances where there is a final hearing in this Court listed for four days, the wife has prepared all her material for that trial and will file shortly and the matter is well on the way to being prepared for trial, I can hear the parties’ evidence and that of their witnesses and stand over part-heard until after the Supreme Court proceedings have been determined and the pool fully crystallised, my final judgment.
I can stand over my final judgment until after receiving submissions when the pool is known and if necessary, and I would always entertain any application, for to leave to adduce further evidence should that be required post the Supreme Court proceedings being finalised. I accept that there may need to be evidence led on the future needs of the parties and it may be able to be done by submissions. However the Court would be open to ensure justice, equity, and fairness is accorded to the parties and permit further oral evidence. There would be a difference in assessing future needs if the pool is only $100,000, or $1.5 million, or $2 million or whatever sum it is that is determined after the Supreme Court proceedings have been finalised, which should be at the end of 2021.
Given that I am available to hear the matter, that there is a scarcity of hearing dates in the Sydney registry as there are only three trial judges at present, that the Supreme Court proceedings do not affect my ability to conduct this hearing on parenting or hear the evidence about contributions and make an assessment, rather I am stopped from making a final decision, I do not see there are sufficient grounds why I would adjourn the final hearing in these circumstances. Given I can resume the hearing as a part-heard matter and receive the evidence that is necessary at that time, I propose to proceed to conduct the hearing on 27 September on the basis outlined by Ms Warda.
This is the most cost-effective manner to deal with this next litigation. The wife has prepared her trial material and, if I adjourn the hearing, that will be wasted. The wife has limited means, and litigation is expensive. It is an imperative that the Court maximise judicial resources and minimise delays to the parties. This matter has been in the court since 2010, and although I accept the parties reconciled for a period of time after that date, since 2014 this litigation has been ongoing in earnest. It would be a travesty of justice to further adjourn a final hearing, a hearing which will ultimately dispose of the issues before this Court.
Therefore the orders of the Court are as follows:
(1)The husband’s application I disqualify myself from further the proceedings is dismissed;
(2)The husband’s application for an adjournment of the final hearing is dismissed;
(3)I reserve both parties’ costs of this hearing to final hearing.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson.
Associate:
Dated: 23 August 2021
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