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Vader & Dantes

Vader & Dantes

Case [2022] FedCFamC1F 613 12 August 2022

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Appeal

Abuse of Process

Admissibility of Evidence

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 1)
Vader & Dantes [2022] FedCFamC1F 613

File number(s): SYC 2265 of 2014

Judgment of: HARPER J

Date of judgment: 12 August 2022

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal on the basis of actual bias and apprehended bias – Where the application for recusal is limited to procedural hearings – Where father asserts bias due to his advocacy and law reform work – Application for recusal refused – Father also seeks adjournment of final hearing dates asserting insufficient time to prepare and file evidence – Time extended for father to file and serve one updated consolidated trial affidavit – Adjournment application not pressed.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Father objects to updating subpoenas to NSW Police and child’s school – Party issuing impugned subpoena must demonstrate that documents sought have “apparent relevance” to issue in proceedings – Where father accepts relevance of the first subpoena but asks for the subpoena to be varied to extend its scope – Where court satisfied that the material sought by the second subpoena has apparent relevance – Objections dismissed.

Cases cited:
Baumann & Rushbrooke [2016] FamCA 905

Kehoe & Seden (No 2) [2022] FedCFamC1F 346

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Nagel & Clay (2020) 60 Fam LR 550; [2020] FamCA 326

Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700; [2001] EWCA Civ 1217

SCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 668

Division: Division 1 First Instance

Number of paragraphs: 22

Date of hearing: 12 August 2022

Solicitor for the Applicant: Swaab

The Respondent: Litigant in Person

Solicitor for the Independent Children's Lawyer: Ark Law
ORDERS

SYC 2265 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS VADER

Applicant

AND:
MR DANTES

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HARPER J

DATE OF ORDER:

12 AUGUST 2022

THE COURT ORDERS THAT:
1.Time be extended for the Respondent Father (“the father”) to file and serve one updated consolidated trial affidavit by no later than close of registry filing on 5 September 2022.
2.The father’s Application in a Proceeding seeking an adjournment filed on 13 July 2022 otherwise be dismissed.
3.The father’s Application in a Proceeding seeking recusal filed on 8 August 2022 be dismissed.
4.The schedule to the subpoena issued to School E be varied to include the following words at the end of paragraph 2 of the schedule: “including documents in relation to the program called “[Program F]” and relevant to Y.
5.The objection to the subpoena issued to NSW Police be dismissed.
6.Leave be granted to the Independent Children’s Lawyer to issue such further subpoenas as required.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vader & Dantes

Details

AGLC: Vader & Dantes [2022] FedCFamC1F 613
Case: [2022] FedCFamC1F 613
Decision Date: 12 August 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant Ms Vader brought a proceeding against the respondent Mr Dantes, with the Independent Children’s Lawyer also involved. The matter primarily concerned family law issues, with the applicant seeking various orders concerning the care and custody of their child. The respondent raised several procedural applications, including an application for the judge to recuse themselves, an application for an adjournment of the final hearing dates, and objections to subpoenas issued to NSW Police and the child’s school.

The respondent sought the recusal of the judge on the basis of actual bias and apprehended bias, arguing that the judge’s advocacy and law reform work related to family law issues created a perception of bias. The court examined the respondent's application and found no evidence to support the claim of bias or apprehended bias. The court held that the respondent had not shown any facts that would lead a reasonable observer to conclude that the judge was biased or likely to be biased. The application for recusal was therefore dismissed. The respondent also sought an adjournment of the final hearing dates, asserting insufficient time to prepare and file evidence. The court noted that the respondent had ample time to prepare for the hearing and that the application for adjournment was not pressed.

The respondent further objected to the subpoenas issued to NSW Police and the child’s school. The court held that the party issuing the subpoena must demonstrate that the documents sought have an apparent relevance to the issues in the proceedings. The court found that the material sought by the subpoenas had apparent relevance and dismissed the objections accordingly. The subpoena to the school was varied to include additional documents related to a specific program and relevant to the child.

The court granted the Independent Children’s Lawyer leave to issue further subpoenas as required. The final orders included an extension of time for the respondent to file an updated consolidated trial affidavit, dismissal of the recusal and adjournment applications, variation of the subpoena to the school, dismissal of the objection to the subpoena to NSW Police, and granting leave for the Independent Children’s Lawyer to issue further subpoenas.

Orders

Orders of the court

SYC 2265 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VADER

Applicant

AND:

MR DANTES

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HARPER J

DATE OF ORDER:

12 AUGUST 2022

THE COURT ORDERS THAT:

1. Time be extended for the Respondent Father (“the father”) to file and serve one updated consolidated trial affidavit by no later than close of registry filing on 5 September 2022.

2. The father’s Application in a Proceeding seeking an adjournment filed on 13 July 2022 otherwise be dismissed.

3. The father’s Application in a Proceeding seeking recusal filed on 8 August 2022 be dismissed.

4. The schedule to the subpoena issued to School E be varied to include the following words at the end of paragraph 2 of the schedule: “including documents in relation to the program called “[Program F]” and relevant to Y.

5. The objection to the subpoena issued to NSW Police be dismissed.

6. Leave be granted to the Independent Children’s Lawyer to issue such further subpoenas as required.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Vader & Dantes [2022] FedCFamC1F 613

Cases Citing This Decision

No citing cases yet.

Cases Cited

Kehoe & Seden (No 2) [2022] FedCFamC1F 346
Citation 1 (Para 21)

…e then was), in Baumann & Rushbrooke [2016] FamCA 905 at [25]–[45]. I distilled those principles relevantly in the decision of Kehoe & Seden (No 2) [2022] FedCFamC1F 346 at [13]–[19]: 13. The principles applicable to setting aside a subpoena were comprehensively stated by McClelland J (as he then was) in Baumann and Ors…
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Citation 2 (Para 21)

…e Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 in the NSW Court of Appeal, Bell P (as he then was) observed at [57] that the apparent relevance of documents is “one of the reasons why medical and telephone records, for example, are frequently the subject of subpoenas, e…
Nagel & Clay [2020] FamCA 326
Citation 3

…ation and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Nagel & Clay (2020) 60 Fam LR 550; [2020] FamCA 326 Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700; [2001] EWCA Civ 1217 SCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 668 Div…
Doughty-Cowell v Kyriazis [2018] VSCA 216
Citation 4 (Para 8)

…ect and succinct statement of the level of knowledge assumed for the hypothetical construct. In Doughty-Cowell v Kyriazis [2018] VSCA 216, that Court referred to [52] – [53] in Johnson and said at [79]: The level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is…
In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896
Citation 5 (Para 21)

…[2017] NSWCA 50 at [56] (“sufficient apparent connection”). Re Force Corp Pty Ltd (in liq) [2018] NSWSC 896 at [22] and [24] explained “apparent relevance” as meaning something could “reasonably be expected” to “throw light” on some of the issues in the proceedings (see most recently in this Court Woodcock & Woodc…
D v Australian Financial Security Authority [2017] NSWCA 50
Citation 6 (Para 21)

…at [12]; Baumann at [32] and [82] (“on the cards”); D v Australian Financial Security Authority [2017] NSWCA 50 at [56] (“sufficient apparent connection”). Re Force Corp Pty Ltd (in liq) [2018] NSWSC 896 at [22] and [24] explained “apparent relevance” as meaning something could “reasonably be expected” to “throw l…
Lowery v Insurance Australia Ltd [2015] NSWCA 303
Citation 7 (Para 21)

…ware International Ltd v Bodsworth [2005] NSWSC 1115 at [20]–[24]; Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320 at [12]; Baumann at [32] and [82] (“on the cards”); D v Australian Financial Security Authority [2017] NSWCA 50 at [56] (“sufficient apparent connection”). Re Force Corp Pty Ltd (in liq) [2018] NSWSC…
ICAP Pty Ltd v Moebes [2009] NSWSC 306
Citation 8 (Para 21)

…use the words of Nicholas J in [ ICAP Pty Ltd v Moebes [2009] NSWSC 306] at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so a…
A v Z [2007] NSWSC 899
Citation 9 (Para 21)

…investigate the facts”, citing the decision of Brereton J in A v Z (2007) 212 FLR 255 at 257. Therefore, so long as a subpoena can plausibly be seen to relate to an issue in the proceedings (or to “cast light” on such an issue), and the subpoena is not in other respects too vague or oppressive, it should not be set…
Smits v Roach [2006] HCA 36
Citation 10 (Para 8)

…138. The presumptive state of mind of the hypothetical observer has been the subject of much judicial attention. In Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 at [95] Kirby J described this observer as a “ hypothetical construct ” who will be “ familiar with the general nature and course of the proceedings,…
T & D [2006] FamCA 1560
Citation 11 (Para 21)

…Incorporated v Bishopgate Investment Trust (1993) 4 All ER 998 at 1005; Mulley & Marney v Manifold (1959) 103 CLR 341 at 345; T & D [2006] FamCA 1560 at [6]. It is not legitimate to issue a subpoena on the basis of “an outside chance” that something useful might turn up in the documents (at [33] citing R v Ridgeway…
Portal Software v Bodsworth [2005] NSWSC 1115
Citation 12 (Para 21)

…ter cases have adopted the same or similar phraseology: Portal Software International Ltd v Bodsworth [2005] NSWSC 1115 at [20]–[24]; Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320 at [12]; Baumann at [32] and [82] (“on the cards”); D v Australian Financial Security Authority [2017] NSWCA 50 at [56] (“sufficie…
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Citation 13 (Para 7)

…airs v Jia Legeng (2001) 205 CLR 507 at [72]–[73] and [185]–[187]; SCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 668 at [36]–[38]).…
Minister for Immigration And Multicultural Affairs v Jia Legeng [2001] HCA 17
Citation 14

…(No 2) [2022] FedCFamC1F 346 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Nagel & Clay (2020) 60 Fam LR 550; [2020] FamCA 326 Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700; [2001] EWCA Civ 1217 SCAA v Minister for Immigration & Multicult…
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Citation 15 (Para 8)

…to decide ”: Johnson & Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (“ Johnson ”). In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (“ Ebner ”) at 345 the High Court held the test of apprehended bias requires satisfaction of a two-step process. First, the identification of wha…
Johnson v Johnson [2000] HCA 48
Citation 16 (Para 8)

…might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide ”: Johnson & Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (“ Johnson ”). In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (“ Ebner ”) at 345 the High Court held…
R v Saleam [1999] NSWCCA 86
Citation 17 (Para 21)

…igelman CJ and Studdert J agreed) in [ R v Saleam [1999] NSWCCA 86] at [11], it can: (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case, at least in civil matters, an inability to demonstrate that it…
Trade Practices Commission v Arnotts Ltd [1989] FCA 645
Citation 18 (Para 21)

…The father contended there had been no convictions for criminal activity, and as I understood his submissions, suggested there was no apparent relevance to the material sought. The principles applicable to setting aside a subpoena were comprehensively stated by McClelland J (as he then was), in Baum…
Trade Practices Commission v Arnotts Limited [1989] FCA 883
Citation 19 (Para 21)

…levance” in relation to subpoenas is of long standing. In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103, Beaumont J used the expression in posing the question of whether the material sough[t] has “apparent relevance to the issues in the principle proceedings”. Numerous later cases have ado…
Alister v the Queen [1984] HCA 85
Citation 20 (Para 21)

…& Harkiss and Anor (2011) FLC 93-476 at 85,856; see also Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 per Powell J). 14. ... 15. The contention that a subpoena is an abuse of process usually rests on the underlying assertion that it has no “legitimate forensic purpose”, f…
Mulley v Manifold [1959] HCA 23
Citation 21 (Para 21)

…er case: at [31] citing McMillan Incorporated v Bishopgate Investment Trust (1993) 4 All ER 998 at 1005; Mulley & Marney v Manifold (1959) 103 CLR 341 at 345; T & D [2006] FamCA 1560 at [6]. It is not legitimate to issue a subpoena on the basis of “an outside chance” that something useful might turn up in the documen…
Baumann and Ors & Rushbrooke and Anor [2016] FAMCA 905
Citation 22 (Para 21)

…l sought. The principles applicable to setting aside a subpoena were comprehensively stated by McClelland J (as he then was), in Baumann & Rushbrooke [2016] FamCA 905 at [25]–[45]. I distilled those principles relevantly in the decision of Kehoe & Seden (No 2) [2022] FedCFamC1F 346 at [13]–[19]: 13. The principles…
[2001] 1 WLR 700 [2001] 1 WLR 700
Citation 23 (Para 7)

…d a mind made up against the applicant and was not open to persuasion in favour of the applicant ( Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at [37]–[38]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]–[73] and [185]–[187]; SCAA v Minister for Im…

Legislation Cited

Family Law Act 1975 (Cth)
1 mention

File number(s):	SYC 2265 of 2014
Judgment of:	HARPER J
Date of judgment:	12 August 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal on the basis of actual bias and apprehended bias – Where the application for recusal is limited to procedural hearings – Where father asserts bias due to his advocacy and law reform work – Application for recusal refused – Father also seeks adjournment of final hearing dates asserting insufficient time to prepare and file evidence – Time extended for father to file and serve one updated consolidated trial affidavit – Adjournment application not pressed. FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Father objects to updating subpoenas to NSW Police and child’s school – Party issuing impugned subpoena must demonstrate that documents sought have “apparent relevance” to issue in proceedings – Where father accepts relevance of the first subpoena but asks for the subpoena to be varied to extend its scope – Where court satisfied that the material sought by the second subpoena has apparent relevance – Objections dismissed.
Cases cited:	Baumann & Rushbrooke [2016] FamCA 905 Kehoe & Seden (No 2) [2022] FedCFamC1F 346 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Nagel & Clay (2020) 60 Fam LR 550; [2020] FamCA 326 Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700; [2001] EWCA Civ 1217 SCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 668
Division:	Division 1 First Instance
Number of paragraphs:	22
Date of hearing:	12 August 2022
Solicitor for the Applicant:	Swaab
The Respondent:	Litigant in Person
Solicitor for the Independent Children's Lawyer:	Ark Law

SYC 2265 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS VADER Applicant
AND:	MR DANTES Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HARPER J
DATE OF ORDER:	12 AUGUST 2022