Zemin & Kaba (No 3) - [2024] FedCFamC1F 408

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zemin & Kaba (No 3) [2024] FedCFamC1F 408

File number(s): PAC 571 of 2020

Judgment of: BERMAN J

Date of judgment: 4 June 2024

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Ex tempore reasons – Where judgment is reserved following a final hearing – Application in a Proceeding to reopen and adduce further evidence – Consideration of whether it is in the interest of justice that further evidence be presented – Consideration of the need for a fair hearing – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Ex tempore reasons – Oral Application for disqualification – Consideration of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488 – Consideration of application for actual and apprehended bias – Application dismissed.

Legislation: Family Law Act 1975 (Cth) Div 12A, ss 69ZN, 69ZT, 69ZX, 102NA.

Cases cited:
Adlin & Northern Territory Central Authority (No. 5) (2021) FLC 94-019

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

Charisteas v Charisteas [2021] HCA 29

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63

Johnson & Johnson (No 3) (2000) FLC 93-041

Murray v Figge (1974) 4 ALR 612

Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342

Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

Division: Division 1 First Instance

Number of paragraphs: 50

Date of hearing: 4 June 2024

Place: Adelaide via MS Teams

Counsel for the Applicant: Litigant appeared self-represented

Counsel for the Respondent: Mr Givney

Solicitor for the Respondent: Sui Juris Lawyers

Counsel for the Independent Children's Lawyer: Ms Bevan

Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers
ORDERS

PAC 571 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ZEMIN

Applicant

AND:
MR KABA

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

4 JUNE 2024

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 10 April 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).
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EXTEMPORE REASONS FOR JUDGMENT
BERMAN J

Ms Zemin (“the applicant”) and Mr Kaba (“the respondent”) have not been able to reach agreement in…

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 Zemin & Kaba (No 3)

Details

AGLC: Zemin & Kaba (No 3) [2024] FedCFamC1F 408
Case: [2024] FedCFamC1F 408
Decision Date: 4 June 2024

CaseChat Overview and Summary

In the Family Court of Australia, Zemin & Kaba (No 3) was a case that involved a final hearing where judgment was reserved. The matter revolved around an application to reopen and present further evidence in a proceeding, as well as an oral application for the disqualification of a judge. The applicant sought to introduce additional evidence and argued that the judge should be disqualified due to perceived bias. The legal issues that the court had to address were whether it was in the interest of justice to allow further evidence and whether the application for disqualification was valid under the principles established in Ebner v Official Trustee in Bankruptcy and Johnson v Johnson.

The court first examined the application to reopen and adduce further evidence. It considered the principles of fairness and justice, assessing whether the additional evidence could materially affect the outcome of the case. The court concluded that introducing further evidence at that stage was not warranted as it would not serve the interests of justice. Regarding the application for disqualification, the court scrutinized the allegations of bias, both actual and apprehended, in light of the cited precedents. It found that the applicant's claims did not meet the threshold for disqualification.

As a result, the court dismissed both the application to adduce further evidence and the application for disqualification. The judge's decision was grounded in the need for procedural fairness and the absence of a justifiable ground for disqualification. Consequently, the court upheld the reserved judgment and dismissed the applications without further action.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed 10 April 2024 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 571 of 2020
Judgment of:	BERMAN J
Date of judgment:	4 June 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Ex tempore reasons – Where judgment is reserved following a final hearing – Application in a Proceeding to reopen and adduce further evidence – Consideration of whether it is in the interest of justice that further evidence be presented – Consideration of the need for a fair hearing – Application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Ex tempore reasons – Oral Application for disqualification – Consideration of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488 – Consideration of application for actual and apprehended bias – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) Div 12A, ss 69ZN, 69ZT, 69ZX, 102NA.
Cases cited:	Adlin & Northern Territory Central Authority (No. 5) (2021) FLC 94-019 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 Charisteas v Charisteas [2021] HCA 29 Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 Johnson & Johnson (No 3) (2000) FLC 93-041 Murray v Figge (1974) 4 ALR 612 Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Division:	Division 1 First Instance
Number of paragraphs:	50
Date of hearing:	4 June 2024
Place:	Adelaide via MS Teams
Counsel for the Applicant:	Litigant appeared self-represented
Counsel for the Respondent:	Mr Givney
Solicitor for the Respondent:	Sui Juris Lawyers
Counsel for the Independent Children's Lawyer:	Ms Bevan
Solicitor for the Independent Children's Lawyer:	Sarah Bevan Family Lawyers

PAC 571 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ZEMIN Applicant
AND:	MR KABA Respondent
AND:	INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	4 JUNE 2024