Srbinovska & Srbinovska
[2021] FedCFamC1F 351
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Srbinovska & Srbinovska [2021] FedCFamC1F 351
File number(s): SYC 754 of 2019 Judgment of: CAMPTON J Date of judgment: 21 December 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant was granted leave to make an oral application that the Judge recuse himself from further hearing of the proceedings – The relevant test as to apprehended bias identified in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the judge, in his capacity as counsel at the NSW private bar, was engaged by the respondent in previous proceedings some ten years prior to the hearing of this application, and was attended on by the applicant and respondent in conference for the purpose of obtaining advice – Where the Court is satisfied that a fair minded lay observer may reasonably apprehend that the Judge may not bring an impartial and unprejudiced mind to the resolution of the issues in the case – Where the proceedings can be efficiently progressed in the docket of another Judge – Application for recusal granted Legislation: Family Law Act 1975 (Cth) ss 79, 79A Cases cited: Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 ; [2000] HCA 63 Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 21 December 2021 Place: Sydney Counsel for the Applicant: Mr Gilbert Solicitor for the Applicant: Kydon Segal Legal Lawyers Counsel for the Respondents: No Appearance Counsel for the Second and Third Respondents: Ms Holmes Solicitor for the Second and Third Respondents: Polczynski Robinson ORDERS
SYC 754 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS A SRBINOVSKA
Applicant
AND: MR R SRBINOVSKA
First Respondent
MR ROMANO
Second Respondent
MR AMATO
Third Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
21 DECEMBER 2021
THE COURT ORDERS THAT:
1.I grant the Applicant Wife leave to make an oral Application that I recuse myself from any further hearing of proceedings SYC 754 of 2019.
2.The final hearing listed before me on 21 February 2022 is vacated.
3.I direct the proceedings be listed before another Judge in the Sydney Registry as soon as possible for further consideration as to trial directions.
4.I recuse myself from further hearing of the proceedings SYC754 of 2019.
5.I note the interlocutory application of each the wife and the second and third Respondents as listed before me today has not yet been determined.
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 pseudonym Srbinovska & Srbinovska has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
The applicant, Ms A Srbinovska, by way of an Initiating Application filed on 8 February 2019 commenced proceedings for financial adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) arising from her marriage to the respondent, Mr R Srbinovska, in 2001. There are three children of the marriage, namely:
(a)X, born in 2003;
(b)Y, born in 2005; and
(c)Z, born in 2008.
The applicant contends a separation between her and the respondent in about March 2012. The applicant and respondent entered into consent property orders on 7 May 2013, such orders being made in the Parramatta registry of this Court in proceedings number PAC1824 of 2013.
On application of the respondent’s brother, Mr S Srbinovska, pursuant to s 79A of the Act, judgment was delivered by Foster J and orders made at Parramatta on 30 July 2014 setting aside the consent property orders made between the applicant and respondent on 7 May 2013. The applicant, by way of a further application, sought to set aside the orders made by Foster J at Parramatta on 30 July 2014. Those proceedings were determined by Le Poer Trench J in the Sydney registry of this Court on 25 May 2015, his Honour dismissing the applicant’s application to set aside the orders of Foster J.
The respondent was bankrupted in 2017. The current second and third respondents in these proceedings are the respondent’s trustees in bankruptcy. They are also receivers of specified real property pursuant to orders made in the Supreme Court of New South Wales (“the Supreme Court”).
The respondent was engaged in lengthy and complex litigation in the Supreme Court, arising subsequent to the death of his mother in 2006. In the proceedings between the respondent and his brother, Mr S Srbinovska (being number 2012/…) judgment was delivered and orders made in the Supreme Court, concluding those substantive proceedings. Implementation and enforcement of those orders are the subject of further judgments and orders of the Supreme Court. A notice of motion of the second and third respondents in these proceedings seeking recovery of costs and expenses arising from their receivership and their role in defending a portion of the Supreme Court proceedings is next listed for directions before the Chief Justice in Equity in 2022.
The current proceedings were allocated to my docket and came before me on 25 October 2021 for the purposes of trial management directions. On that day, the applicant appeared in person. There was no appearance by or on behalf of the respondent, he failing to meaningfully engage in these proceedings since their commencement. He has not filed a response in these proceedings. The second and third respondents were represented by Ms Holmes of counsel on 25 October 2021. The applicant had listed for hearing on that day a Further Amended Application in a Proceeding filed 22 October 2021 (“the Application in a Proceeding”), seeking a raft of injunctive orders for the preservation of property, and orders of an anti-suit character, seeking to restrain the second and third respondents from prosecuting their Notice of Motion in the Supreme Court.
She additionally sought relief that was somewhat unusual in that she was seeking that this Court would assume the function of the Supreme Court in determining the second and third respondents’ Notice of Motion, and sought other orders to the effect, in this forum, discharging and/or varying orders made by the Supreme Court. I was available and ready to hear the applicant’s Application in a Proceeding on 25 October 2021. The second and third respondents were in a position to proceed with the hearing of the Application in a Proceeding on that day. The hearing of the applicant’s interlocutory application on 25 October 2021 was adjourned on the applicant’s application.
It was the understanding of the Court on 25 October 2021 that the outstanding motions of the second and third respondents in the Supreme Court would be heard and determined either in November or early December 2021, and in those circumstances, the applicant’s Application in a Proceeding was adjourned for hearing today, and further directions were made allocating the substantive s 79 relief of the applicant for hearing before me over three days commencing 21 February 2022. Extensive trial directions were made in anticipation of that hearing event. Over the course of exchanges earlier today and, specifically, just prior to the lunch break, the applicant provided instructions to Mr Gilbert of counsel, who appears on her behalf today, as to her recollection of my engagement at the New South Wales private bar by way of being briefed on behalf of the respondent in these proceedings in circumstances where he had been joined to proceedings number SYC1484 of 2010 as between his brother Mr S Srbinovska and his brother’s wife, Ms J Srbinovska.
Over the period of the luncheon adjournment, Mr Gilbert was able to access a sealed copy of an order made in proceedings before Trench J on 4 April 2012, recording my appearance for Mr R Srbinovska in those proceedings. That Mr R Srbinovska being one and the same as the respondent in these proceedings. Mr Gilbert puts to the Court, on instructions, that both Mr R Srbinovska and Ms A Srbinovska attended upon me in conference at the private bar in 2012 and possibly 2013 for the purposes of providing advice to each of them in relation to proceedings number SYC1484 of 2010. That contention most properly is not put into contest by the second and third respondents.
My reading of orders made by McClelland DCJ in proceedings number 1484 of 2010 on 17 September 2020 reveal, firstly, that the Parramatta registry file number PAC184 of 2013, being the file relating to the original consent orders between the applicant and respondent in this matter, and being the file as to orders being made by Foster J setting aside those consent orders on 30 July 2014, has been transferred to the Sydney registry and consolidated with proceedings number 1484 of 2010, and secondly, that both the applicant and respondent in these proceedings are recorded as respondents in proceedings number 1484 of 2010.
The applicant today has obtained leave, absent objection, to make an oral application that I recuse myself from further hearing these proceedings in the circumstances identified earlier in these reasons. Again, quite properly, the second and third respondents neither consent to nor oppose the application.
The test for apprehended bias does not require a determination as to the actual mind of a judge. Rather, the question is whether a fair-minded and informed lay observer might reasonably apprehend that a judge might not bring an impartial or unprejudiced mind to the resolution of the issues in the case or, putting it another way, might have predetermined an issue such that he or she was not open to persuasion, rather than whether the particular judge did so.
The principles are identified in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”). I find that there is no suggestion of any waiver in this matter in circumstances where Mr Gilbert of counsel has raised the issue as to recusal at the first available opportunity. The authorities equate that it is an important consideration as to the impression of the lay observer.
I am mindful that a challenge as to apprehend bias is a challenge to the integrity of the administration of justice, and that the High Court has cautioned litigants from being unduly sensitive or suspicious. The High Court in Ebner identified two steps which must be found to be real and substantial: the first being identified as to the foundation for the application for recusal; the second being a relevant connection or nexus between what is asserted and the possibility of the apprehension of prejudgment.
In this matter, I am comfortably satisfied as to the absence of a fair trial in the mind of the lay observer existing. Secondly, that in the circumstances, should the respondent participate in these proceedings, he may, quite properly, make an application that I recuse myself from further hearing of the proceedings. Nextly, that such a belated circumstance, should the matter continue to proceeding to trial before me, would occasion significant cost expense and further delay to the parties. I find it is open to conclude that a fair minded and informed lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues in this case.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 19 January 2022
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