Vang & Chung (No 7)
[2024] FedCFamC1F 734
•16 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vang & Chung (No 7) [2024] FedCFamC1F 734
File number(s): SYC 1433 of 2020 Judgment of: HARPER J Date of judgment: 16 October 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding – Where the wife is required to seek leave to file any interim applications – Where the wife seeks leave to file an Application in a Proceeding – Where the wife seeks orders for recusal on the basis of actual bias and apprehended bias – Where the wife does not establish any basis for recusal – Application for recusal refused –Where a stay order sought by the wife is made – Where the wife seeks a range of additional orders that are incompetent and/or have no reasonable prospect of success – Where the balance of the wife’s Application in a Proceeding is dismissed. Legislation: Family Law Act 1975 (Cth) ss 79A, 106B
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Foreign Evidence Act 1994 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 10.09
Cases cited: Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Vang & Chung (No 3) [2024] FedCFamC1F 101
Vang & Chung (No 4) [2024] FedCFamC1F 390
Vang & Chung (No 6) [2024] FedCFamC1F 604
Wynn & Danilov [2023] FedCFamC1A 149
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 16 October 2024 Place: Sydney The Applicant: Litigant in person Solicitor for the First Respondent: Ms Burke of Broun Abrahams Burreket Solicitor for the Second Respondent: Ms Dai of Mangioni Biggs & Co Counsel for the Non-Party Objectors: Ms Everson Solicitor for the Non-Party Objectors: Clayton Utz ORDERS
SYC 1433 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VANG
Applicant
AND:
MR CHUNG
First Respondent
MR D
Second Respondent
AC ACCOUNTANTS
Non-Party ObjectorY PTY LTD
Non-Party Objector
ORDER MADE BY:
HARPER J
DATE OF ORDER:
16 OCTOBER 2024
THE COURT ORDERS THAT:
1.Order 5 made on 10 September 2024 is stayed pending determination of Appeal NAA259/2024.
2.The Application in a Proceeding filed by the Applicant Wife on 10 October 2024 is otherwise 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 pseudonyms Vang & Chung have been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are property proceedings commenced by the applicant wife (“wife”). The first respondent is the husband (“husband”).
It has been the subject of numerous interlocutory applications and the subject of at least three interlocutory judgments by me being: Vang & Chung (No 3) [2024] FedCFamC1F 101 (“Vang & Chung (No 3)”) delivered on 28 February 2024, Vang & Chung (No 4) [2024] FedCFamC1F 390 delivered on 6 June 2024 and Vang & Chung (No 6) [2024] FedCFamC1F 604 delivered on 10 September 2024.
Vang & Chung (No 3) considered at some length the background of the proceedings and noted that the second respondent is the father of the husband. One consequence of that judgment was that a sum of nearly $7,000,000 being half the proceeds of sale of a property at E Street, Suburb F, are the subject of interlocutory preservation pending final hearing.
The wife has filed a number of appeals, three of which remain outstanding at the date of this judgment and she informed me on 16 October 2024 that she is proposing to “escalate” further appeal to the High Court of Australia.
On 5 September 2024 I made the order listing the proceedings for final hearing to commence on 17 March 2025 before another judge.
On 10 September 2024 I made orders dismissing the wife’s application which sought a raft of orders which are set out in that judgment together with orders dealing with an Application for Review of a registrar’s decision concerning a number of subpoenas. The registrar in question set those subpoenas aside, but upon review I set aside some of the subpoenas but retained parts of the schedules of other subpoenas. Those orders are the subject of one of the appeals currently pending before the Full Court.
On 10 October 2024 the wife filed a Further Application in a Proceeding. I mention here that by an order of the senior judicial registrar on 15 September 2023 the wife is required to seek leave of the Court prior to the listing of any further interim applications. Consequently, the first order sought in the wife’s Application in a Proceeding filed on 10 October 2024 is for such leave to be granted. The wife filed an affidavit in support of her Application in a Proceeding which ran to some 139 pages.
The third and fourth orders sought by the wife in her application seek that the application be listed before a judge other than myself and be listed for an urgent hearing.
The full text of the orders sought by the wife I set out as follows:
1. That the Appellant wife be granted leave for this urgent application, and the leave to be allowed.
2. Seek urgent stay orders given regarding order1 made on 5 Sept 2024 and orders made on 10 Sept 2024, except order 4 till the outcomes of the appeals. Alternatively set aside or adjust the orders.
3. The application to be listed before a judge except Justice Harper.
4. The Application to be listed as an urgent listing.
5. The subpeonaed produced documents per the subpoena issued date on 19 March 2024 to be secured at the Family Court Registry till further directions given by the appeal full court or final hearing.
6. Seek leave The amended Application filed on 5 July 2024 and the corrresponding affidavits to support the earlier application filed by the wife to be considered with this new filing.
7. No further listings before Justice Harper before the outcomes of the earlier appeal regarding the earlier recusal application filed on 2 July 2024 and the amended application filed on 5 July 2024.
8. Seek costs from the Australian Family Court or the costs being paid by the Respondent if the Applicant wife can demonstrate the Applicant wife has been disadvantaged by a biased judge. The costs include: any legal costs to resolve the unfair judgement or orders, any re-trail costs, any appeal costs that has been paid by the Applicant wife to fix case management issue.
9. Seek leave from the court the court grant the wife to bring foreign evidence into Australia to support this financial settlement matter. Include: [Country RR], [Country YY], [Country AB], and [Country X]. Particularly regarding the properties, the motor vehivles, the companies shares that registered under the Respondent husband 's name, the companies shares hold or has held or disposed of by the husband, the bank accounts under the husband's name.
10. Seek disclosure order from the Respondent husband to disclose his assets changes including the disposed assets, companies shares changes in details worldwide from 2017 Jan till up to date.
11. Seek disclosure order and evidence from the Respondent father to prove his affidavit that he is the only beneficiary owner and fund provider to the Australian company [Y Pty Ltd], and the evidence from the father proving the husband has never been a beneficiary of the Australian company [Y Pty Ltd] since the company Registartion, including its shareholding company, the [Country RR] company, [PP Group]).
12. Seek the court to make temporary orders that the subpoenaed entity [Y Pty Ltd] cannot deregister itself by [Mr D] or any agents until the case's final hearing.
13. Seek the court grant a cost order and penalty if evidence proved the husband has unfrank fianncial disclosure since the case beginning.
14. Seek an asset recovery order for any disposed asset since 12 months before seperation refer to the asset identified and disposal evidence provided by the Applicant wife under the earlier application affidavit per above Order 6.
15. Refer to section 79A, set aside the property order and procedure order made by Justice Harper on 14 Nov 2023.
16. Refer to Section 106B- preventing the husband continue disposal of property or increase loans unless reasonable and neceaary needs for living costs and legal costs.
(As per original)
I will come back to the question of leave.
The second order sought by the wife is a stay of the order listing the matter for final hearing on 17 March 2025 and an order seeking a stay of the orders made on 10 September 2024 pending the outcome of the wife’s appeal.
I listed the matter for Mention on 16 October 2024. On that occasion by agreement I ordered the stay of Order 5 made on 10 September 2024 the effect of which will be to preserve the position regarding any subpoenaed documents which are currently held in the Registry. The wife seeks that the other orders regarding subpoenas be either set aside or adjusted but that is a matter which will be the subject of consideration by the Full Court and in my view it is not appropriate for me or necessary to make any order staying those orders because at present there would be no prejudice to the wife if the stay of those orders was not granted.
I turn then to the balance of the Application in a Proceeding. I do so because the respondent husband made an application orally for summary dismissal of the balance of the Application in a Proceeding. The wife made clear that she had filed her material in support and consequently if the Court acceded to entertaining the application for summary dismissal it would be necessary to take her evidence at its highest without competing evidence being filed by the husband. That is the approach I take and I consider it appropriate to deal with the summary dismissal application bearing in mind the overarching purpose in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) as can be applied according to r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The power to order summary dismissal is contained in r 10.09 of those Rules which sets out four bases being:
(a)absence of jurisdiction;
(b)absence of a capacity to apply for the orders sought;
(c)that the orders sought are frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.
The first thing that needs to be addressed is the wife’s application that I recuse myself. As I understood her submissions she suggested that I held actual bias with respect to her. The principles relating to actual bias were recently addressed in Newett & Newett (No 2) (2021) FLC 94-051 (“Newett & Newett (No 2)”) at [58]–[60]:
58. The relevant principles were helpfully summarised in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]–[70]:
68.A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
…
70. As Gleeson CJ and Gummow J observed in that case at [71]:
“The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”
59. It is difficult to distil what facts and circumstances on which the mother relies on to establish actual bias. Her own perception of the primary judge’s conduct is not sufficient and neither is the fact that the proceedings have not gone the way the mother believes they should have.
60. It is therefore helpful to refer to the terms of Ground 4 which identify the matters relied on as:
(a) The Case Management process and Orders made throughout 2020 and 2021,
(b) His Honour’s conduct during Case Management proceedings and at Trial,
(c) His Honour’s criminal act in not applying Schedule 1 s273B Criminal Code Act 1995 (Cth) despite evidence before the Court from June 2020,
(d) His Honour’s conduct in making oppressive Orders on 9 December 2020,
(e) His Honour’s refusal to hear the Urgent Children’s Safety matter on 3-4 December 2020, and simultaneously prioritising the Father’s Non-Urgent Recovery hearing filed 4 days later than the Mother’s application;
(f) His Honour’s refusal to acknowledge the public display of Family Violence on 1 December by the Father,
(g) His Honour’s refusal to make adverse credit findings against the Father pertaining to prima facie evidence of long term ongoing family violence committed against the Mother and Children by the Father.
(As per the original)
In particular at [59] the Full Court said:
It is difficult to distil what facts and circumstances on which the mother relies on to establish actual bias. Her own perception of the primary judge’s conduct is not sufficient and neither is the fact that the proceedings have not gone the way the mother believes they should have.
In addressing the specific question as to what basis she relies upon to establish that objectively it could be found that I did not bring a mind that was open to persuasion to any of her applications, the wife, as far as I could understand it, after a long and strident description of grievance against the husband, suggested that because she had failed in almost all of her applications the inference must be that I was actually biased against her. She bolstered this assertion by oblique references to the existence of corruption issues, the fact that her failure meant that I infer deliberately favoured the husband and then infer obliquely as well to political and taxation issues. She said for example that I in my earlier decisions “made sure the husband could pay his lawyers” while she had been left “without a cent” and generally I had shown obvious bias and favour towards the other parties.
In my view, these submissions shorn of their emotive content are no more than an example of what the Full Court referred to in Newett & Newett (No 2) at [59] and that is the wife has simply pointed to the fact that the proceedings have not gone the way she believes they should have. In my view this is no foundation for a conclusion that I have a mind that is not open to persuasion.
To the extent that the wife relies upon an apprehension of bias the relevant principles have been examined numerous times in decisions of the Full Court such as Wynn & Danilov [2023] FedCFamC1A 149 at [49] and [50] which I will extract here:
49. Rather the appeal submissions focused on apprehended bias. The test for apprehended bias is well known and was stated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] (“Ebner”). Two limbs must be satisfied. First, the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits and, secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. It should be emphasised that the relevant reasonable apprehension is not that of, and is not determined by, the subjective perceptions of any party to the proceedings, although the impression that might reasonably be made on the parties by the facts is not completely ignored (Johnson v Johnson (2000) 201 CLR 488 at [52] per Kirby J; Nagel v Clay (2020) 60 Fam LR 550 at [137]).
50. At issue is the objectively determined reasonable apprehension of a hypothetical fair-minded observer. The presumptive state of mind of the hypothetical observer has been the subject of much judicial commentary. For example, in Doughty-Cowell v Kyriazis [2018] VSCA 216 the Victorian Court of Appeal said:
79. …The level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is that of a layperson (not a lawyer), informed as to the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear.
(Footnote omitted)
In my view the wife has neither demonstrated what might be said to lead to the conclusion that I would decide any of her applications other than on their legal and factual merits nor has she articulated the logical connection between the alleged matter and the feared deviation from the course of deciding the case on its merits. In my view the wife has not established any basis for me to recuse myself.
The orders sought by the wife which I have already dealt with are orders 1 to 5. I turn then to the balance of the orders.
Order 6 referred to seeking leave for the Court to consider an amended application but that is the subject of appeal currently before the Full Court as is the question of further listings before me (order 7) which is partly dealt with by my determination concerning recusal as well as the fact that these are matters which are before the Full Court as well.
Order 8 seeks an order that the Family Court pay the costs of the respondent husband if the wife demonstrates she has been disadvantaged by a biased judge. In my view that order is incompetent and it could never be made on its face.
Order 9 seeks leave from the Court that the wife be able to bring foreign evidence into Australia to support her property proceedings. That order on its face appears to be also incompetent. At a point during the delivery of judgment on 16 October 2024 the wife interrupted and sought to bring to my attention a range of information apparently on the public website of the Commonwealth Attorney-General and she made reference to the Foreign Evidence Act 1994 (Cth) and the possibility of this Court sending a letter of request to another court in a different jurisdiction for the purpose of taking evidence in that jurisdiction. As far as I could understand the wife’s submissions, it appeared that she misunderstood the process in putting together evidence in support of her Application for Final Orders. The taking of evidence on behalf of a foreign jurisdiction in Australia or the taking of evidence in a foreign jurisdiction on behalf of an Australian court is the subject of specific procedural considerations. The wife was unable to point to any rule of this Court which would govern those procedures and conceded that her affidavit in support of the application did not provide evidence which would otherwise support the making of order 9. In my view that order has no reasonable prospect of success, at least as currently formulated.
Orders 10 and 11 seek disclosure but do not specify with great particularity what disclosure the wife wants from the husband and in my view should be properly dealt with by way of requests for disclosure that are properly formulated and if necessary an application seeking orders in relation to specific disclosure in the event the wife contends it has not been provided.
Order 12 seeks a temporary order against a company, Y Pty Ltd, which is not a party and is incompetent in my view.
Order 13 seeks the Court grant a cost order and penalty against the husband if “unfrank financial disclosure” is demonstrated. In my view this is a matter which must await final hearing as it is a question relevant to costs.
Order 14 seeks an asset recovery order for assets disposed in the 12 months before separation. It is not clear how that order could be made on an interlocutory basis and in my view it is an order which would appropriately be made at final hearing if the basis was established by the wife.
Order 16 makes reference to s 106B of the Family Law Act 1975 (Cth) which presumably would be directed to the setting aside of a disposition but the order itself before me on 16 October 2024 seeks an order “preventing the husband continue disposal of property or increase loans”. In my view the order as formulated is incompetent and has no reasonable prospect of success.
Finally order 15 makes reference to s 79A which is directed to the setting aside of existing property orders on the bases nominated in that section. Section 79A is referred to by the wife in relation to an order made by me on 14 November 2023 which restrained the second respondent from dealing with part of the proceeds of sale of the property at E Street, Suburb F and is presently the subject of a reserved judgment in the Full Court on appeal.
In my view most if not all the orders sought by the wife demonstrate she appears to be unable to distinguish procedural and interlocutory orders and the evidence which is to be relied upon at interlocutory hearings from fact finding at final hearing. I am not persuaded that any of the matters she points to, even on the most generous construction of the orders that she seeks, could demonstrate such orders have any reasonable prospect of success justifying leave.
Accordingly, apart from the stay order which I have already made, I dismiss the wife’s Application in a Proceeding filed on 10 October 2024.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 4 November 2024
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