SCVG & Estate of KLD (No 6)
[2022] FedCFamC1F 1040
Federal Circuit and Family Court of Australia
(DIVISION 1)
SCVG & Estate of KLD (No 6) [2022] FedCFamC1F 1040
File numbers: SYC 4380 of 2008 and SYC 5956 of 2016 Judgment of: GILL J Date of judgment: 20 December 2022 Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Oral application for trial judge to recuse himself in respect of stay application with respect to need to consider grounds of appeal pursued on basis of apprehended bias – Role of trial judge to determine a stay from a decision made by the same trial judge – Application regarding recusal dismissed –Where the applicant sought relief from orders following extensive and protracted litigation which he maintains were procured by fraud – Where the bases for relief are uncertain – Where, absent jurisdictional issues no practical imperative or justification for stay - Costs awarded to the Child Support Registrar at a fixed sum as applicant was wholly unsuccessful and his application was misconceived.
Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Penfold & Penfold (1980) 144 CLR 311 Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 20 December 2022 Place: Canberra Solicitor for the Applicant: Litigant in person Counsel for the First Respondent: Ms Seric Solicitor for the First Respondent: Macphillamy’s Lawyers Solicitor for the Second Respondent: Mr K Eskerie, Sparke Helmore ORDERS
SYC 4380 of 2008
SYC 5956 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCVG
Applicant
AND: ESTATE OF KLD
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
order made by:
GILL J
DATE OF ORDER:
20 DECEMBER 2022
THE COURT ORDERS THAT:
Oral application for recusal
1.Mr SCVG’s oral application that I recuse myself in respect of the stay applications is dismissed.
Further filing directions
2.The time for Mr SCVG to file material in relation to costs and any vexatious litigant matter in response to the material filed by the Estate and second respondent is extended to 4.00 pm on 20 January 2023.
3.The directions otherwise remain unchanged.
Application in a proceedings
4.The Applications in a Proceeding filed by Mr SCVG are dismissed in this matter.
Costs
5.I order that Mr SCVG pay the Child Support Registrar’s costs of responding to the Applications in a Proceeding fixed in the amount of $1,500, within twenty-eight (28) days of the date of these orders.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Oral application for recusal
Mr SCVG makes an oral application that I recuse myself in respect of the stay applications that he has filed. He correctly identifies that one of the factors that is considered on a stay application is the merits of the grounds of appeal. He notes that the assessment of the merits of the grounds of appeal would fall to me, under circumstances where I am responsible for the judgment that is being appealed from, and thereby responsible for undertaking an analysis of those grounds to some degree. He submits that for the same reasons that I would not sit on a full bench on appeal from my own decision, a lay observer would regard me as not being in a position to be unbiased in respect of the merits of the appeal.
I take it that the application made by Mr SCVG is one of apprehended bias.
I observe that it typically falls to a trial judge to determine a stay from a decision made by a trial judge, including the matter identified by Mr SCVG being the merits of any appeal grounds. That such is the typical approach I anticipate would be sufficiently understood by a lay observer acquainted with the processes of the Court, who would, even without approaching the matter on the basis of legal training, have appropriate understanding that such is the approach that is approved by the courts in general for the resolution of such issues and that accordingly, absent special reasons, which have not been identified here, such would not raise a reasonable apprehension of bias.
Accordingly, I dismiss the application for recusal.
Stay application
The applicant, Mr SCVG, in two parallel proceedings pursued relief in this jurisdiction on the basis of an assertion that various court orders and their ancillary effects had been procured by fraud. He sought relief in the original jurisdiction of the court to set aside a number of orders. Those proceedings saw a significant deferral of the rights of the other participants in the litigation, being rights that had been finally determined and on a number of occasions had been confirmed on appeal. The relief that was pursued by Mr SCVG that justified the deferral of those rights pending its determination was an extraordinary relief, and on its refusal the fact of the refusal gave strong reason to decline to interfere further in the established rights the parties, even if there was in fact a power for me to do so.
The relief pursued by Mr SCVG in this matter is itself somewhat confused.
The first aspect of that confusion is that primary relief is to seek a stay of the determination that I have made. Such relief constitutes no relief at all, as all underlying rights are extant pending a decision to set aside those orders and hence, where there is no decision to set aside, as was the case here, a staying of the determination that there is no decision set aside offers Mr SCVG no relief.
The second aspect is that the juridical basis to interfere with the vast array of matters identified by Mr SCVG in each of his applications in a proceedings is unclear. For example, amongst the matters that he seeks a form of stay in relation to, is interference in respect of costs in respect of a special leave application before the High Court, the determination by the Child Support Agency of various matters, final determinations made at first instance and determinations made following appeal. The basis for seeking such relief, where the relief that was pursued substantively was extraordinary in nature and has now been refused, is unclear to me.
However, if I set aside the consideration of the juridical basis for the relief, and turn to a consideration of the practical justification, again I observe that there is no good basis for the relief even if it is available.
Firstly, Mr SCVG’s assertions regarding the potential bankruptcy of the other parties as identified in his affidavit material rise no higher than assertion and appear to be highly speculative.
Secondly, Mr SCVG expresses concern that if there is a costs award made in these proceedings, being the substantive proceedings in which relief has been refused, that the result will be that he will be required to strip out his super fund and be unable to reverse that potentially until bankruptcy proceedings are taken against the other parties. I observe that even if that was to be the case, it is premature as there has been no costs order yet made.
A further issue he raises is the potential of a costs and vexatious litigant application and judgment by me impacting on the court of appeal determining any appeal in the substantive matter. That argument should be rejected.
As to Mr SCVG’s underlying assertion made in his affidavit of the depletion of the Estate that is earmarked for his daughters, it might be observed that this litigation pursued by Mr SCVG constitutes a significant drain on the Estate. However, that is not a matter that I take into account in this judgment.
It should also be observed that the grounds of appeal, as currently framed, do not allow me to derive a sufficient sense of the challenge to my decision at first instance to justify any further interference with the substantive rights that have been held at bay for so long.
Accordingly, even if I was to assume that I had a juridical basis to interfere and to grant the stays as sought by Mr SCVG, the practical justification is not demonstrated. That application is dismissed.
Costs
The second respondent (Child Support Registrar) has made an application for costs fixed in the sum of $1,500, which appears at face value to reasonably represent the quantum appropriate to an order for party/party costs in this matter, but fixies the sum so as to minimise future costs in the determination of the sum.
The starting point when considering costs is that each party bear their own costs, unless there are justifying circumstances establishing that a different course of action should be taken see, for example, the High Court case of Penfold & Penfold.[1]
[1] (1980) 144 CLR 311.
The relevant considerations are contained in s 117(2)(a) of the Family Law Act 1975 (Cth). The parties have identified no particular relevant matter out of those save that identified by Mr Eskerie (counsel for the second respondent) which sets out that Mr SCVG has been wholly unsuccessful in his application for relief and that the application was misconceived. I accept Mr SCVG has been wholly unsuccessful in his pursuit of the relief on the stay proceedings and that being the only matter out of the s 117(2)(a) factors that have been identified as relevant, I place weight upon that and determine, that there are sufficient circumstances to justify departing from the usual course of action.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 20 December 2022
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