TEDJA & SONY

Case [2017] FamCAFC 121

FAMILY COURT OF AUSTRALIA

TEDJA & SONY [2017] FamCAFC 121

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – where the appellant seeks that the appeal judge disqualify himself from further hearing this matter – Where the relevant tests have not been satisfied – Where the appellant has failed to identify what might lead the appeal judge to decide the case on anything but its legal and factual merits – Where the logical connection between the matter and the feared deviation of deciding the case on its merits has not been articulated – Where the appellant has not provided any evidence which demonstrates apprehended bias – Application dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where many of the appellant’s grounds of appeal are incompetent and others have no relevance to the application before the trial judge – Where none of the grounds of appeal demonstrate error by the trial judge and none of the grounds have merit – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the further evidence sought to be adduced by the appellant does not demonstrate that the order under appeal is erroneous – Application dismissed.

FAMILY LAW – COSTS – Where the respondent seeks an order for costs on an indemnity basis – Where there is no question that there are circumstances here which would justify an order for costs – Where the appellant has been wholly unsuccessful in the proceedings – Where the financial circumstances of the appellant are clearly superior to those of the respondent – Where even impecuniosity is not a bar to a costs order being made where there are circumstances which otherwise justify an order for costs – Where the circumstances are sufficiently exceptional to warrant costs being assessed on an indemnity basis – Costs ordered in favour of the respondent to be assessed on an indemnity basis in default of agreement.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 9.08

CDJ v VAJ (1998) 197 CLR 172
Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248
D & D (Costs) (No. 2) (2010) FLC 93-435
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Munday v Bowman (1997) FLC 92-784
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342
Tedja & Sony [2014] FamCAFC 35
Tedja & Sony (No. 2) [2014] FamCAFC 111
Tedja & Sony [2015] FamCAFC 13
APPELLANT: Mr Tedja
RESPONDENT: Ms Sony
FILE NUMBER: MLC 7099 of 2012
APPEAL NUMBER: SOA 68 of 2016
DATE DELIVERED: 10 July 2017
PLACE DELIVERED: Adelaide
PLACE HEARD: Melbourne
JUDGMENT OF: Strickland J
HEARING DATE: 12 December 2016
LOWER COURT JURISDICTION: Federal Circuit Court
LOWER COURT JUDGMENT DATE: 27 July 2016
LOWER COURT MNC: [2016] FCCA 2069

REPRESENTATION

THE APPELLANT: In Person
COUNSEL FOR THE RESPONDENT: Dr Parker
SOLICITOR FOR THE RESPONDENT: Women’s Legal Services Victoria

Orders

  1. Paragraph 1 of the orders sought in the…

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AGLC
TEDJA & SONY [2017] FamCAFC 121
Case
[2017] FamCAFC 121
Decision Date

CaseChat Overview and Summary

The husband appealed against a decision of the Family Court, which had made orders in relation to the custody and residence of his children with the wife. The husband sought to disqualify the appeal judge from hearing the matter, and also sought to adduce further evidence. The wife opposed the husband’s application to disqualify the appeal judge and also opposed the husband’s application to adduce further evidence. The wife further sought an order for costs on an indemnity basis. The appeal judge found that the husband had not satisfied the relevant tests for disqualification of a judicial officer. The appeal judge found that the husband’s further evidence did not demonstrate that the order under appeal was erroneous, and so the application to adduce further evidence was dismissed. The appeal judge found that the husband’s grounds of appeal were either incompetent or irrelevant to the application before the trial judge, and had no merit. The appeal judge found that the wife’s circumstances justified an order for costs, and that even the husband’s alleged poor financial circumstances did not prevent such an order being made. The appeal judge found that the circumstances were sufficiently exceptional to warrant costs being assessed on an indemnity basis.

The husband’s application to disqualify the appeal judge was dismissed. The appeal was dismissed. The husband was ordered to pay the wife’s costs of and incidental to the appeal, such costs to be assessed on an indemnity basis in default of agreement as to the same.

Orders

Orders of the court

1.

Paragraph 1 of the orders sought in the application in an appeal filed by the appellant husband on 10 November 2016 be dismissed.

2.

The appeal be dismissed.

3.

The appellant husband pay the costs of the respondent wife of and incidental to the appeal, such costs to be assessed on an indemnity basis in default of agreement as to the same.

Background

Background to the litigation

The evidence sought to be adduced by the husband was set out in his affidavit also filed on 10 November 2016, and it is readily apparent from the nature of that further evidence that it fails to demonstrate that the order under appeal is erroneous. It is sufficient for this purpose to set out the topics of the “evidence” from the husband’s affidavit as follows:BackgroundApplicable Principles Throughout the HearingAgreement Between the Appellant and the RespondentRole of Legal Advisor/Solicitor/CounselDrama in the ProceedingHealth Condition of the RespondentViews of the ChildrenSought Order The “evidence” is not only irrelevant to the appeal, but it is also inadmissible, and the application to adduce further evidence will be dismissed. Having found that none of the grounds of appeal have any merit the appeal must be dismissed. At the conclusion of the hearing of the appeal I received submissions from the parties as to the question of costs depending on the result of the appeal. In the event that the appeal was dismissed the wife sought an order for costs, with such costs to be calculated on an indemnity basis. The husband opposed any order for costs. The first question is whether a costs order should be made at all. The primary position under s 117 of the Family Law Act 1975 (Cth) (“the Act”) is that each party to proceedings should bear their own costs (s 117(1)). However, where there are circumstances that justify it the court can make an order for costs, and in determining that regard has to be had to the factors set out in s 117(2A). There is no question that there are circumstances here that would justify an order for costs, given that the husband has been “wholly unsuccessful in the proceedings” (s 117(2A)(e)). In opposing any order for costs, the husband relies on his alleged poor financial circumstances. He says that he has recently resigned from his employment which provided him with a salary of $1,800 per month. He says that he is now receiving Centrelink benefits, but he is planning to find other employment. However, it is not only the husband’s financial circumstances that are relevant. Section 117(2A)(a) requires that the financial circumstances of both parties be taken into account. In that regard, the wife is unemployed and she also receives Centrelink benefits. Given these circumstances I am not persuaded that the financial circumstances of the parties should prevent an order for costs being made. The financial circumstances of the husband, who is far from impecunious, are clearly superior to those of the wife. Indeed, I note that the husband apparently had sufficient funds to allow him to take the children to Z. In any event, there is clear Full Court authority that even impecuniosity is not a bar to a costs order being made, and particularly where, as here, there are circumstances which otherwise justify an order for costs (e.g. see D & D (Costs) (No. 2) (2010) FLC 93-435). I turn then to the question of whether the order for costs that I propose to make should be calculated on an indemnity basis.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The high point of the husband’s case can be seen from his conclusion in his affidavit, and it is instructive to set that out here in full:…Conclusions64.The evidence in this matter demonstrated that the appeal trial judge in this matter has nil result of providing the best outcome in handling previous appeal cases;65.One order was completely over-ride by factual evidence about the respondent’s issues;66.The other order has no legal basis and now only created an on-going dispute when the overseas/Z order has been finalised and completed in November 2014;67.Based on the above factual evidences, his success rate was 0% and failure rate of 100%;68.All those fail outcomes were made at tax payers’ expense which led to the question about the overall judicial accountability;69.In a broader term, this condition represents the failure of the respondent and her legal representative/lawyer/counsel in their legal endeavour in relation to this matter.70.In return, such unsuccessful or fail legal effort leads to the question about accountability to the member of the general public as the respondent was initially being a legal aid recipient.71.The appeal trial judge, too, demonstrated the likelihood, or very high probability, of making a similar error in handling or dealing with the current proceeding for not demonstrating the three indispensable attributes of a judicial officer: competence, independence and impartiality;72.Recognizing that facts leading to disqualification are present, the appeal trial judge is to recuse himself sua sponte (on his own motion);73.Beyond any reasonable doubt, the appellant was completely convinced that His Honourable Justice Strickland has not been demonstrating the three indispensable attributes of a judicial officer: competence, independence and impartiality;74.In relation to the above attribute, the appellant was not convinced at all about the ability of the appeal trial judge in making sound, just, and erroneous-free orders.75.Hence, the appellant is now seeking order from this Honourable Court that His Honourable Justice Strickland hereby shall disqualify himself in any current or future proceeding in case(s) involves Mr Tedja as his competence, independency, impartiality, and accountability are reasonably being questioned;76.Still in relation to competence and accountability issues, the appellant is now seeking order from this Honourable Court that any reserve for cost order shall be set aside completely.(Errors and omissions as per original) The fact of the matter is that the husband has not provided one piece of evidence that demonstrates apprehended bias on my part, and thus his application must be dismissed. I make two further comments. First, it is again apparent that the gravamen of the husband’s complaint is that he does not like the decisions that I have made in his previous matters. Secondly, the fundamental mistake that the husband makes is that he fails to appreciate that the test is objective, and not subjective, and that can be seen in paragraphs 73 and 74 of his affidavit set out above.

Ratio Decidendi

Legal Principle Established

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