Scott & Munayallan (No. 3)
[2021] FedCFamC1F 121
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1
Scott & Munayallan (No. 3) [2021] FedCFamC1F 121
File number(s): SYC 59 of 2010 Judgment of: HENDERSON J Date of judgment: 8 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for disqualification and a stay of orders listing the matter for a final hearing and granting the wife’s application for costs and interim property distribution – Discussion of relevant principles – Applications dismissed Legislation: Family Law Act 1975 (Cth) s 79 Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd 229 CLR 557
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
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 7-8 October 2021 The Applicant: Self-represented litigant Counsel for the Respondent: Mr Duc Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYC 59 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1
BETWEEN: MR SCOTT
Applicant
AND: MS MUNAYALLAN
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
8 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application made for disqualification be dismissed.
2.The application made for a stay of Orders made be dismissed.
3.The matter be set down at 10am on 12 October 2021 for final hearing to resume.
AND THE COURT NOTES THAT:
4.Mr S. advised the Court he will not participate in the hearing of this matter until his current appeal has been heard. There is no date allocated for his appeal to be heard.
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 pseudonyms Munayallan & Scott (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This is an application by Mr Scott (“the husband”) that I disqualify myself from hearing this matter, it is the third application he has made in this regard, and that I stay orders I have made.
The stay of orders was that the final hearing proceed made on 13 August 2021 and on that date I also made an order refusing his application to disqualify myself. Additionally, today, Mr S. sought that I stay orders made on 6 October 2021 requiring him to pay some 12-odd thousand dollars to the wife being a lump sum of all outstanding costs orders; an interim costs order being by way of a property distribution in the sum of $100,000 to continue these proceedings; and an indemnity cost orders of the four days of time wasted from 27 September 2021 when the matter had been listed for a four day trial in the sum of $49,804, with all sums to be paid to the wife within 14 days.
Going first to the disqualification application.
Mr S. alleges in an email dated 7 October 2021, sent to the Court at 9.32 am, and by his oral submissions to that email the following against me: bias; prejudice; a lack of procedural fairness awarded to him and in the email states that I lied in a judgment. He bases his assertions on decisions I made in July 2020 concerning parenting matters when I issued a recovery order in respect of one of the children and the child was returned to the mother and suspended the orders he had obtained from Berman J on a final basis for time.
Further, that I have not allowed him to issue further subpoenas yet have allowed the wife to issue unlimited numbers of subpoenas; that I put pressure on him to serve subpoenas on various entities and parties and that is not his job; I conducted matters in his absence when he was, during the week of 27 September 2021 and to use his words in his email, “genuinely very unwell last week, I fel[t] like I got run over by a train, I am still having chest pains. I am still in recovery…I was also harassed”.
Further, that my interim decision of 6 October 2021 in relation to payment of monies to the wife by him the judgment that I delivered showed I had made credit findings against him and, consistent with Rothman J’s decision in Karadaghian v Big Beat (Australia) Pty Ltd (No 3) [2014] NSWSC 1691 where his Honour says that where there have been multiple applications in a case and credit findings, a judicial officer should disqualify themselves on the basis of potential apprehended bias.
Mr S. asserts – this being the test – that the reasonable observer would not believe that I, the judge, would bring a fair mind to the trial.
Consistent with the decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), the wife says the Court should not be too anxious to disqualify itself and that such matters go to the very heart of the administration of justice.
This application comes at the end of a lengthy time in this Court for this matter. The proceedings began in earnest in 2014. This matter was listed for final hearing before me to commence 27 September for four days. It is at the pointy end of the litigation pathway, as we say, where I am poised to hear evidence, test evidence and then deliver a judgment to finalise these lengthy, ongoing proceedings between these parties. That is a salient and relevant fact in this application.
The wife says Mr S. has failed to establish the onus which is upon him in such matters, namely to establish a proper basis for his application. As set out in the decisions of Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) and Hartnett & Sampson [2008] FamCA 75 and many other cases that Mr S. himself has referred me to – and he is correct - the test to be applied in applications of apprehension of bias, see Johnson at [11] where it was said to take the form of pre-judgment of the case, was stated as thus:
…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.
The ultimate issues for me to decide at this final hearing which I have determined will re-commence, depending on the outcome of this judgment, next week, 11 October 2021 for four days are as follows:
(1)Identifying the matrimonial pool for division between these parties;
(2)Assessing their contribution-based entitlement to that pool for their past contributions, both direct and indirect financial contributions, and role as parent and homemaker;
(3)Adjust perhaps or not, or consider whether to adjust or not, their contribution-based entitlement for their past endeavours, having regard to their future needs, colloquially referred to as the “75(2) factors”;
(4)Then look back at the orders and determine if the orders I propose to make are just and equitable in all the circumstances.
I cannot finally deal with the property aspect of this matter i.e. to deliver a judgment for there are still Supreme Court proceedings which will be heard on 8 December 2021 which will have an impact on the matrimonial pool available for division, however all other factors under section 79 of the Family Law Act 1975 (Cth) (“the Act”) can be dealt with by me now. I will of course receive submissions after the Supreme Court decision is known, or even entertain an application for further evidence if that be required in order to finalise my judgment as it is an important factor in any family law matter when making a determination of parties’ entitlement what the value of the pool is and the nature of the pool that is being divided. I have already made orders to that effect.
Additionally, I have been asked by the wife to make a departure order under the Child Support (Assessment) Act 1989 in relation to child support for the two children of the marriage and I apprehend that is likely to be a lump sum amount that the wife will ask the Court to order.
The wife has also asked that I declare the husband a vexatious litigant and there are some contraventions and potentially perhaps a contempt application to be dealt with.
Mr S. has an application which is whether he is granted leave to reopen the parenting proceedings or, as I have listed as a matter for the trial, whether I reinstate the final orders of Berman J which provided for the children to spend four nights a fortnight in their father’s care or maintain as final orders the interim orders made by Senior Registrar Campbell that the children spend two nights each alternate weekend in their father’s care as the mother seeks. Thus, there is an aspect of parenting to be dealt with as well.
I have had little opportunity to assess the matrimonial pool and have noted the decisions of Berman J, and Slattery J in the Supreme Court of New South Wales where they found that Mr S. is the alter ego of various related companies and this is the wife’s position before me at the hearing. I have made no positive findings about this but note it in my judgment of 6 October 2021 that, given the events in June 2021 where Mr S. was able to effect movement of $1.3 million from an account in a company with the help of a Mr M, he still pulls the strings of P Pty Ltd, at least one of the named companies that the wife says are his alter egos.
Further, I note in my judgment of 6 October that a medical certificate he tendered to the Court on Monday 27 September 2021 to support why he did not attend Court had been altered from that contained in the records of the medical centre which were produced the following day, being LL Medical Centre notes, wife’s exhibit 1. That Mr S.’s description of his diagnosis at E Hospital on the Sunday night before the final hearing was to commence did not match up with the notes of the hospital which again were produced under subpoena, wife’s exhibit 2.
Further, I said his lack of truthfulness was of grave concern in determining the reality of the situation and that this related to the altered medical certificate and his control over the companies that the wife has referred to and referred to in my judgment of 6 October 2021 and that he has much to answer when he comes to Court and the hearing commences. Mr S. may well be able to satisfy the Court that there is nothing untoward in any of these matters but at this stage, concerns have been raised. What I have been endeavouring to do since at least August 2021, if not before in 2020 when this matter first came before me, is to commence to hear the substantive matter.
I have tried to hear that matter in earnest since at least Monday 27 September 2021 and have been unable to do so as Mr S. has either not appeared, was unable to be contacted or has raised interim issues that I must address and I have done my best to address those interim issues. He asserts he was initially too unwell to attend Court. The medical evidence he tendered did not support these allegations in my opinion but he may be able to convince me when the hearing starts in earnest. I am yet to embark upon a hearing of the evidence or have the wife’s assertions tested or Mr S.’s assertions tested. I am most keen that this final hearing commence, given the matter has been in the court system in earnest since at least 2014.
Using the words of Callinan J in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd 229 CLR 557, I have not expressed or made obvious my profound disbelief in Mr S.’s case as I have been denied an opportunity to hear it. I have not been able to fully flesh out what his case is. In those circumstances, I cannot see that I have pre-judged any matter yet to be heard or that I have been biased or not accorded him procedural fairness. I have not made a credit finding against Mr S. but have raised matters of concern, which he can address and should address at a final hearing and I have raised these issues, which may go to his credit at a final hearing. The concerns that were raised, for example, the medical certificate being tampered with, being unable to contact Mr S., are matters from which the wife’s interim applications that I dealt with last week sprang.
Her concerns were heightened and my concerns were heightened and I dealt with both the wife’s interim applications the week of 27 September 2021 as well as Mr S.’s interim oral application.
As with my previous decision on 13 August 2021 not to disqualify myself, I do not see that on the evidence presented by Mr S. the fair-minded observer would believe I would not bring an impartial mind to the ultimate decision I am tasked to make. Again, this is but a delaying tactic by Mr S. in having his matter heard and I do not know why this is so. To not do so, that is, to not hear this matter, would significantly prejudice the wife who has been ready to proceed since 27 September 2021, has prepared her case and is just as an important litigant in this matter as is Mr S.. The interests of justice apply to her as equally as they do to Mr S..
In the words of Ebner at [8] “[t]here must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits” and this connection has not been demonstrated in my opinion by Mr S.’s evidence. Rather, he has satisfied me again that he does not agree with my decisions, something he is perfectly entitled not to agree with.
Mr S. has filed an appeal from my decision of 13 August 2021 to initially not disqualify myself and, secondly, not to adjourn the final hearing. That appeal was before Austin J on 22 September 2021 and the orders were that the wife’s application to expedite the appeal was dismissed. His Honour noted the appeal lies from orders 1 and 2 of 13 August 2021. Grounds 1, 2, 4 and 5 relate to order 1 and grounds 1 and 3 relate to order 2. It was noted grounds 5 and 6 are not related to orders subject of the appeal and I cannot see those grounds going anywhere. Mr S. did not file a stay consequent upon his filing that appeal until 24 September 2021 when the hearing was due to commence on 27 September 2021.
The grounds of his appeal are as follows. Ground 1 is apprehension of bias; secondly that he was denied procedural fairness or it was not granted to him, whichever way you phrase it; that there has been a miscarriage of justice; that I erred by not disqualifying myself and continuing the hearing in the Family Court when the Supreme Court proceedings have not yet been finalised, that this is going to cause the parties to double their costs with witnesses, court fees, hearing costs and the like.
I have dealt with the assertion that there was apprehended bias and I have dismissed that application and I have dealt with ground 1 of his appeal.
Going to ground 2, I am unclear what is meant other than subpoena complaints. I have afforded Mr S. procedural fairness as I have not commenced to hear the final hearing and I have stood it over to resume on Monday, 11 October 2021 and have dealt only with interim issues that have arisen consequent upon evidence that was obtained during the time the hearing was meant to be occurring, including an application by Mr S., orally made, to discharge an improper freezing order that the banks had placed on his personal accounts.
I am unclear what lack of procedural fairness I have given Mr S.. He has had every opportunity to commence the hearing, start his evidence and produce his material. I did not commence the hearing last week because of his assertions of illness and being unable to contact him and I stood it over to commence on 7 October 2021 and then on 11 October 2021 for the week. Mr S. has not specified what the miscarriage of justice was or is that I am alleged to have engaged in. Ground 4 is perhaps a regurgitation of ground 1. I have analysed the grounds of the appeal as the merits of a case is a necessary part of a stay application.
In a stay application the person seeking the stay has the onus to establish to the Court that it should stay the orders. The orders that are sought to be stayed are that the final hearing continue, that I disqualify myself and the interim costs orders I made. It was an oral application for a stay of the 6 October 2021 costs orders and I accept this oral application and I will deal with that in this judgment.
The principles for a stay are well established, for example, in the decision of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]. The matters that must be dealt with by the Court and the nature of the onus to be discharged is contained in these principles as follows:
(1)The onus is on the applicant who is seeking the stay. I need not find exceptional circumstances;
(2)A person who has received a judgment is entitled to the fruits of that judgment and to rely upon its correctness;
(3)The mere filing of an appeal is not the granting of a stay and there has been no appeal filed of my orders of 6 October 2021 and there is no criticism there as there could not have been;
(4)The bona fides of the applicant;
(5)Whether a stay should be granted on terms and that really is not relevant in this matter;
(6)Whether or not granting the stay will render the appeal nugatory. That is, if I did not grant the stay, would the current appeal be rendered nugatory? The appellate process is always available and can be invoked and nothing is lost or irretrievably lost in not granting the stay; and
(7)I must undertake a preliminary assessment of the strength of the case that is filed or supports the appeal and I should know the time in which the appeal can be heard.
Answering these tests, I have no idea what time this appeal can be heard. No evidence was led by Mr S. and the wife’s application for expedition of the appeal was dismissed. It could be months. I do not know.
Doing a preliminary assessment of the appeal, I find this is a weak appeal given the judgments I have delivered on the evidence that was before me at those times.
The bona fides of the appeal. This is, as I see it and was submitted to me as the crucial argument, but a continuation of a tactic Mr S. has employed in the Supreme Court before Slattery J, before Berman J in this Court and before me now in an endeavour to stop the hearing of the matters before the Court on a final basis. An endeavour to stop the Court hearing the wife’s application on its merits and testing the evidence each party puts before the Court and bring finality to the proceedings for the benefit of the parties and, in this case, the parties’ children. I accept this submission.
The husband asserts the Supreme Court proceedings have not yet finished and this is correct. That to have this hearing now is some form of a double-up of witnesses and costs. As Mr Duc correctly submitted, it is not; they are entirely separate actions. These are family law proceedings about assessing a matrimonial pool and its division, child support, a vexatious litigant application and parenting. The Supreme Court proceedings are about costs. Those proceedings are important and the determination of those proceedings is essential for this Court to know in order to ascertain the matrimonial pool but there is not a doubling-up of witnesses and the wife is in those proceedings only in a form of a watching brief because she has an interest in their outcome.
I do not see there is any doubling-up and Mr S.’s mere assertion of that does not satisfy me. The witnesses and companies that have been joined to these proceedings by the wife have only been joined because Mr S. has not, as he was ordered to do, provided details of certain parties’ and companies’ addresses so that the wife could serve them with subpoenas and obtain information from them. Secondly, he has not served them with the subpoenas as he was also ordered to do, saying the emails bounced back. This has meant the wife then had to take up that cudgel and produce to this Court evidence about these companies and the movement of money, for example, $1.3 million which the wife is of the view has been moved by Mr S. to his mother’s account or accounts his mother controls.
The wife has had to take up this issue to produce this evidence to the Court, matters Mr S. should have disclosed to the Court because it is within his knowledge and control and on his side of the ledger. The Court has acted to protect the matrimonial assets for division between them.
Even after I hear this matter and deliver a judgment, the appeal process is still available to each of the parties. My grave concern is that Mr S.’s words to the Court yesterday in his submission were “if I get a fresh judge I will not delay. The matter will be heard and these things won't happen”. Apart from the fact that is somewhat offensive perhaps to the court processes, it is simply inconsistent with his conduct in the Supreme Court, before Berman J and before myself. It is not just Slattery J that has dealt with Mr S. in the Supreme Court. There have been many other judges as well and appeals abound. In those circumstances, they are hollow words. Therefore, I refuse the stay of orders as sought by Mr S. and the matter will proceed to a final hearing.
Mr S. also sought some stay or variation of other orders I have made in one of his emails and I will entertain those applications when the final hearing commences and we can test the evidence. That is a much more effective way to hear these matters. I am not going to so today. I will do that Monday, Tuesday, Wednesday or Friday of next week, whenever it is appropriate to do so.
Mr S.’s applications have been refused.
Mr S. informed the Court he has another court matter in Suburb NN Local Court on Monday 11 October 2021. This is the first time the Court has been made aware of this hearing.
The proceedings are stood over to commence Tuesday 12 October 2021.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 11 October 2021
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