Van Achteren & Yusuf
[2024] FedCFamC1A 162
•17 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Van Achteren & Yusuf [2024] FedCFamC1A 162
Appeal from: Van Achteren & Yusuf & Ors [2024] FCWA 153 Appeal number: NAA 219 of 2024 File number: PTW 3125 of 2018 Judgment of: AUSTIN J Date of judgment: 17 September 2024 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the applicant was invited to show cause why the appeal should not be summarily dismissed –Where two of the orders being appealed are procedural and not judgments from which any appeal validly lies – Where the primary judge dismissed the applicant’s disqualification application – Where the wife did not attempt to explain how the primary judge erred – Where no appeal succeeds by simply re-running the case at first instance – Where the grounds of appeal are incompetent and have no reasonable prospects of success – Appeal summarily dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 32, 46
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; [2000] HCA 47
Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260
Hullet & Benton (2022) FLC 94-072
Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Number of paragraphs: 34 Date of hearing: 17 September 2024 Place: Newcastle (via Microsoft Teams) The Applicant: Litigant in person The First Respondent: Litigant in person The Second Respondent: Litigant in person (did not participate) ORDERS
NAA 219 of 2024
PTW 3125 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS VAN ACHTEREN
Applicant
AND: MR YUSUF
First Respondent
MR NISSE
Second Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
17 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 23 August 2024 is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Van Achteren & Yusuf has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons explain the summary dismissal of an application for leave to appeal from orders made by a judge of the Family Court of Western Australia on 26 July 2024.
Background
The applicant (“the wife”) and the first respondent (“the husband”) are still litigating a financial cause under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) following the breakdown of their marriage. The proceeding was commenced by the wife in 2018 and now involves multiple respondents, whom it is presently unnecessary to identify.
The litigation has had a long and tortuous history, which need not be traversed in detail.
Relevantly for present purposes, the primary judge assumed case management responsibility for the proceeding from another judge in about mid-2020. On two separate occasions, in November 2021 and November 2023, the wife corresponded with the Chief Judge of the Court complaining about the primary judge’s judicial management of the litigation. On the second occasion, and presumably also on the first, the Chief Judge replied to the wife unexceptionally informing her how the principle of judicial independence precluded interference and the only remedy for any complaint of partiality was for her to make an application directly to the primary judge for disqualification due to bias.
Ignoring such advice, some months later in March 2024, the wife wrote to the principal registrar of the Court expressing her “concerns about the procedural irregularities of the Court’s case management of the file and repeated errors on the record”, alleging such irregularities and errors “creates an apprehension of bias in favour of [the husband]”. The principal registrar replied, informing the wife she would need to apply to the primary judge for disqualification due to apprehended bias if that was her aim.
About two months later, on 29 May 2024, the wife filed an interlocutory application seeking the primary judge’s disqualification on that premise. The application was heard on 4 July 2024, after which judgment was reserved and then delivered on 26 July 2024.
As the wife correctly identifies, the cover sheet to the reasons for judgment mistakenly states the hearing occurred on 26 April 2024, but the mistake is inconsequential. The reasons reveal the hearing could not possibly have been held on that date (at [4], [5] and [40]).
The judge pronounced these three orders:
1. The Reasons for Decision be formally published.
2.The [wife’s], [wife’s name], Form 2 Application in a Case filed 29 May 2024 be dismissed.
3.The outstanding interim applications be listed for an interim hearing on 16 September 2024 at 2:15pm with an estimated hearing time of 2 hours before [the primary judge].
If permitted, the wife purports to appeal from all three orders, but that cannot be correct.
Orders 1 and 3 are procedural orders which do not determine any legal right enjoyed by the wife and are therefore not judgments from which any appeal validly lies (Hullet & Benton (2022) FLC 94-072 at [15]–[17]).
The proposed appeal must be confined to Order 2 dismissing the disqualification application, from which an appeal does lie (s 26(1)(h) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), subject to the grant of leave of leave to bring it because the order is an interlocutory decree (s 28(3)(e)(ii) of the FCFCA Act; reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)).
On 29 August 2024, the wife was notified the appeal proceeding was listed for hearing on 17 September 2024 for the purpose of affording her the chance to explain why the application for leave to appeal should not be summarily dismissed.
The wife replied to the notification complaining that the listing was “trial by ambush” contrary to “all principles of natural justice, procedural fairness, [and] a litigant’s justiciable civil human right to a fair trial”, but that is not so. The trial of the underlying proceeding is still some way off and the wife was afforded a comprehensive hearing of her disqualification application. This is an appeal, in which she bears the burden of demonstrating error by the primary judge. The wife was told the purpose of the listing and was given nearly three weeks to prepare.
Appellate proceedings may be summarily dismissed if they have no reasonable prospect of success (s 46(2) and s 46(3) of the FCFCA Act), which order may be made by a single judge even though the appeal lies to the Full Court (s 32(3)(b) and s 32(5) of the FCFCA Act). The wife failed to demonstrate the proposed appeal had any reasonable prospect of success.
Disposition
By extracting excerpts from the wife’s supporting affidavit, the primary judge identified the premise for the disqualification application within the reasons for judgment as follows:
1.The wife seeks that I be disqualified from further hearing the proceedings. The basis for the disqualification application, is the wife apprehends that I may not bring an impartial mind to the proceedings. Her concerns are multi-various and span a considerable period. The wife deposes:
given [the primary judge’s] prejudgement of this matter since August 2020 and her Honour's previous attempts to list for a Readiness Hearing for the sixth time in four years at all costs, based on a SEW valuation relying on unaudited accounts of only 3 entities and for 3 financial years, and refusing to allow me any input of my evidence to the Terms of Reference, her Honour's mind is not open to persuasion to contemplate any evidence that is brought before the Court, no matter how relevant or compelling. This is my main reason and Ground for seeking [the primary judge’s] Disqualification
(Emphasis added) (Footnote omitted)
…
49.The wife deposes that her grounds of disqualification are as follows (verbatim):
1) Jurisdictional Error:
A. Apprehended Bias by prejudgement, partiality and discrimination.
B.Failure to observe requirements of procedural fairness and the Fair Hearing Rule and Bias Rule of Natural Justice;
C.Failure to apply correct legal principles and applicable rules and legislation.
D.Failure to grant the Applicant leave and the opportunity to tender relevant Expert Witness evidence of probative value, and to appoint an Adversarial Expert for the Applicant.
E.Failure to take relevant evidence into consideration and to assess the imminent risks posed to the Applicant's personal safety and to the dissipation of the marital asset pool.
2) Errors of Law and Fact on the Record
(Footnote omitted) (Emphasis altered)
The wife’s amorphous complaint of judicial bias appeared to comprise allegations of both actual and apprehended bias, with which proposition the primary judge challenged the wife, but she disavowed any allegation of actual bias and confined her challenge to apprehended bias (at [2]). Even so, the apprehension of bias was alleged to arise from the primary judge’s “prejudgment of [the] matter since August 2020”, which was supposedly evident from the way in which her Honour dealt with multiple former interlocutory applications.
The primary judge sequentially addressed and rejected each individual complaint and, in conclusion, said this:
146.Having carefully considered the evidence, nothing raised by the wife properly or relevantly satisfied, as a matter of fact and/or law, either individually or cumulatively, the principles that apply in relation to an apprehension of bias.
…
148.A fair-minded lay observer would not consider that the apprehensions asserted by the wife are reasonably based. Accordingly, I will dismiss the application.
Trite though it is, the singular purpose of this proposed appeal is to challenge the validity of the decision to dismiss the disqualification application, embodied within Order 2 made on 26 July 2024. Unless the wife can demonstrate the decision was wrongly made, the appeal must fail. She ought to be disabused of the mistaken notion that the Court’s appellate jurisdiction is the forum to ventilate her cumulative dissatisfaction with many other interlocutory decisions made over the past few years. The chronological narrative within her Notice of Appeal (which covers 23 typewritten pages) ventures far beyond the confines of the appealed order, instead asserting the merit of her dismissed former interlocutory applications, so it is largely irrelevant to the proposed appeal. So much is evident from this observation made by the wife within the narrative:
57.For context and to assist the Full Court’s understanding of matter, I believe that it is necessary to outline the relevant procedural chronology from [a named judge’s] original Orders, to the present, which reveal some glaring irregularities, and a departure from proper Court rules, procedures and Case Management Guidelines, which have resulted in unreasonable delays, jurisdictional error, denial of procedural fairness, errors on the record, an abuse of judicial discretion and of the Court’s process, and a miscarriage of justice to me because of the imbalance of financial power and level playing field created, to the [husband’s] advantage.
In oral submissions, the wife revealingly said:
It’s not really about her Honour’s refusal [to disqualify herself]
It’s about errors on the record which need to be corrected.
Returning then to the proposed appeal, the grounds are pleaded by the wife as follows:
1.This Application for leave to file a Notice of Appeal lies from the [primary judge’s] Interim Orders dated 26 July 2024 and reasons for Judgment dated 26 July 2024.
2.The learned Judge’s Orders and Reasons for Judgment are attended by sufficient doubt and material discrepancies, to warrant reconsideration by the Full Court of the Family Court of Appeal; and A substantial injustice would result if leave were refused, supposing her Honour’s decision and presentation of the facts to be simply wrong, plainly unjust, biased or unreasonable.
3.Apprehended bias by prejudgment; discrimination against the [wife]; and creating an appearance of partiality towards the [husband] and his solicitors.
3.The learned Judge failed to engage with the [wife’s] case and her evidence supporting allegations of fraud at its highest, in the context of the admissibility of that evidence, pursuant to the Evidence Act 1995 and relevant case law.
4.The learned Judge erred at law by making decisions and Orders which were inconsistent with the applicable legislation and case law and with the intention of the Court, in excess of her Honour’s jurisdiction.
5.The learned Judge failed to take relevant considerations into account - including but not limited to - the core issue of the [husband’s] repeated refusal to comply with Orders for Disclosure and Injunction made by [a named judge], which are still on foot.
6.The learned Judge failed to afford the [wife] procedural fairness to rely on expert forensic evidence and reports, and to have her applications appointing an adversarial expert witness heard, where the failure had a material effect on her Honour’s orders, causing the [wife] to suffer a miscarriage of justice, and the [husband] to gain a financial and procedural advantage.
7.The learned Judge failed to adhere to Court procedures and Case Management Guidelines, causing extended delays in the matter listing for a Readiness Hearing and Trial.
8.The learned Judge provided inadequate reasons for Judgment dated 26 July 2024, which contain mistakes, misrepresentations and omissions of material facts, and outdated facts which have not been updated from her Honour’s previous Judgments to which she refers therein, which are neither supported by the documentary evidence on file nor the procedural chronology of the case, rendering the Judgements unsafe on which to proceed to Trial.
(As per the original)
As formulated, the grounds are incompetent.
Grounds 1 and 2 are not grounds of appeal at all, but rather assertions of the basis upon which the wife should be granted leave to appeal from Order 2. The grant of leave depends upon the merit evinced by the following grounds of appeal.
The first Ground 3 alleges apprehended bias, which ground is pleaded in almost identical terms to one aspect of the overall allegation of bias put to, and identified by, the primary judge in the reasons for judgment (at [49], paragraph 1A), which specific allegation her Honour addressed and rejected (at [112]-[129] and [133]-[138]).
As the Full Court has observed many times before, it is useless for an appellant to repeat in an appeal the bias arguments unsuccessfully made before the primary judge because no appeal succeeds by simply re-running the case at first instance. The appeal is not an original hearing, but rather a structured analysis of whether the primary judge fell into appealable error – in this instance by dismissing the disqualification application. In any appeal conducted by way of a re-hearing, as this is, the demonstration of error by the primary judge is an indispensable condition to the success of the appeal (Allesch v Maunz (2000) 203 CLR 172 at 179–181 and 187; Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204 and 223–225). This ground does not allege error – just an apprehension of bias. The wife did not attempt to explain how it would be alleged the primary judge erred by dismissing the disqualification application.
The primary judge’s dismissal of some or even all of the wife’s past interlocutory applications, without more, does not demonstrate her Honour’s bias (Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307 at [43]; Newett & Newett (No 2) (2021) FLC 94-051 at [59]–[62] and [77]–[78]). Even if it is presently assumed the wife’s complaints about the past interlocutory decisions are well founded and are more than just an expression of her irritation with the results, her Honour’s proven commission of some appealable error did not then establish the complaint of an apprehension of bias and could not now sustain the proposed appeal on that premise. No judge is biased, either actually or ostensibly, just by making mistakes.
Ground 8 alleges Order 2 is vitiated for two different reasons: first, inadequate reasons; and secondly, the reasons for judgment contain “mistakes, misrepresentations and omissions of material facts”, which are not identified within the ground.
The wife did not deign to attempt an explanation of how the primary judge’s reasons for Order 2 were inadequate. Nor did she elaborate the “mistakes, misrepresentations and omissions” to which the ground alludes. Rather than explaining the errors which supposedly infect the appealed decision dismissing her disqualification application, the wife’s complaints articulated within the Notice of Appeal are of errors allegedly made by the primary judge in numerous past interlocutory decisions extending back to when her Honour took over case management responsibility for the proceeding.
The remaining grounds having no apparent connection to Order 2, instead comprising a loose collection of complaints about historical events in the litigation.
The second Ground 3 is imputed to be a complaint of either legal or discretionary error perpetrated by the primary judge while dealing with multiple interlocutory disputes in the litigation over the past few years. The primary judge obviously did not “fail to engage with the [wife’s] case” in respect of the disqualification application because her Honour addressed each intricate component of the bias argument.
Ground 4 is evidently a complaint of legal error by the primary judge when making past “decisions and Orders” disposing of multiple interlocutory applications.
Ground 5 is a complaint of discretionary error by the primary judge failing to take relevant considerations into account, including the husband’s asserted non-compliance with past interlocutory orders and injunctions. However, the decision to dismiss the disqualification application was not a discretionary decision. It was an evaluative factual decision, which was either right or wrong, to which discretionary principles do not apply. The husband’s alleged default in compliance with past orders was not a fact which influenced the determination of the factual question of whether or not the primary judge acted in a way which reasonably permitted an apprehension of bias.
Ground 6 alleges the wife’s deprivation of procedural fairness, but only by failing to grant her past interlocutory evidentiary applications. The considered dismissal of an application does not manifest the denial of procedural fairness.
Ground 7 is a generic complaint about the primary judge’s case management of the litigation.
None of the grounds of appeal evince any reasonable prospect of success and so the appeal is summarily dismissed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.
Associate:
Dated: 18 September 2024
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