Zemin & Kaba (No 3)
[2024] FedCFamC1F 408
•4 June 2024
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 respect of the future parenting arrangements for the three children of the relationship, Mr F born 2005 (“Mr F”), X born 2008 (“X”) and Y born 2014 (“Y”).
In reality, the proceedings really only relate to Y. Mr F is 18 years of age and X will be 16 years of age this year. There is a concession that X will determine the relationship she has with each of her parents. The second aspect to the proceedings relates to settlement of property.
The matter was heard and determined in the Sydney Registry in Division 1 of this Court, commencing on 4 March 2024, and concluding with final submissions on 8 March 2024. The applicant and the respondent were represented by solicitors and counsel. The Independent Children's Lawyer (“ICL”) also briefed counsel. At the conclusion of the proceedings on 8 March 2024, judgment was reserved.
On 10 April 2024, the respondent filed an Application in a Proceeding seeking the following six orders:-
1.That the court grant two weeks to produced and submit a new application to reopen the final hearing. This is due to death in the family and waiting for child support and district court documentation.
2.I request permission from the court to reopen the case in order to conduct further cross-examination of the [applicant].
3.I request permission from the Court to modify the final court orders pertaining to parenting and financial matters.
4.I respectfully request permission and leave from the court to disclose all subpoenas, affidavits, single expert reports, family consultant reports, and case outlines produced for both interim and final hearings. I have thoroughly reviewed all statements made by [the applicant]. We intend to pursue perjury and other legal actions against the [applicant] for both criminal and family matters.
5.Furthermore, I request that all transcripts be provided by the court for potential future appeals. Despite my request to waive the fees for transcript production at the Sydney and Parramatta filing departments, hey have stated their inability to do so. Therefore, I seek approval to produce transcript and waive the fees.
6.That the Court order and approve for additional legal aid grant for cross‑examination.
The Application in a Proceeding is supported by an affidavit of the respondent sworn on 10 April 2024. I refer to the affidavit as being the relevant document that supports the orders sought, but in particular, there is one aspect that is contained in the affidavit that does not have a corresponding order in the Application.
In the affidavit at paragraphs 25 to 42, the respondent seeks an order that I recuse myself from continuing to hear the matter. It is conceded by the respondent that no corresponding order is sought. However, given the importance of such an application and taking into account that the respondent is now a self-represented litigant, I have given leave to the respondent to rely upon his oral application in respect of an order of recusal. I do not consider that there is any significant prejudice to either the solicitors for the applicant or the ICL in circumstances where the matters are raised in the affidavit concerning my involvement in the proceedings.
I am of the view that the gravamen of the Application before me today really has two foci. In order of priority, must be the oral application of the respondent that I recuse myself. I will deal with that part of the application shortly. The second is that, if I do not recuse myself, then the focus is whether leave should be given to the respondent to adduce further evidence. I note that proposed order 1 is not intended to be an Application to reopen the final hearing, but rather it is an application to adjourn to enable an Application to be filed to reopen the final hearing. The order sought was for a period of two weeks.
It is immediately apparent that the Application in a Proceeding filed 10 April 2024 has given significant opportunity, namely a period of nearly two calendar months, for any further material to have been provided by the respondent. Proposed order 2 seeks that the case be reopened to conduct further examination of the applicant. Order 3 is difficult to understand in that it seeks to modify the final orders, but at this stage, and until judgment is delivered, there is no basis to modify, amend or change any final orders.
Similarly, proposed order 4 is apparently an application not directed to these proceedings, but rather directed to the potential that court documents be used in other proceedings. Whilst it may not be understood by the respondent as to the precise nature of the Application, it would seem that what is proposed is to invoke the Harman Undertaking, or the Implied Undertaking, which limit documents that a party or parties are compelled to produce in this Court being used in another court unless leave is given or they have been introduced into evidence.
There are some obvious difficulties about the proposed order. The first and most obvious is that there would be no circumstance where leave could or should be given for the apparent purpose of pursuing perjury or other legal actions, where those proposed proceedings are not yet enlivened. The second aspect is that the Harman Undertaking, or the Implied Undertaking, does not have any effect, consequence or application if the relevant documents have been introduced into evidence. If they have been, then the Implied Undertaking is of no utility. There might then be further matters raised as to whether court proceedings should be used in different ways, but that is not the issue raised by proposed order 4. As such, no order can be made.
Proposed order 5 seeks the transcript of proceedings, in circumstances where the respondent’s request to waive the fees for transcript production has been refused. There appears to be nothing in the affidavit that relates to matter of transcript. In any event, the difficulty is that if there is to be an appeal, it should not be considered that I would dissuade him from doing so, then it is appropriate that an application be made to the Full Court for transcript rather than an application made to me in circumstances where the proceedings, at least at this stage, are considered to have been concluded, albeit judgment is yet to be delivered.
There is more that is required in respect of transcript. It is not for the Court to provide transcript simply because a party asks for it. A greater inquiry is required and that relates to matters of the financial resources that are available to the parties. I say that, not because it in any way impacts upon my inability to deal with proposed order 5, but rather to simply highlight that more may be required if it ultimately is the case that, upon judgment being delivered, a Notice of Appeal is filed, and an application is made to the Full Court for transcript.
Proposed order 6 is again not a matter that is within my power and jurisdiction. I have no ability, nor does any other judicial officer have any ability to order that legal aid be granted for cross-examination, or indeed for any application. I assume that what is sought is an extension of funding pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”). It may be that that is a matter for the respondent, but certainly in the current circumstances I would not propose to consider making any further order under s 102NA of the Act until and unless there is a reason to do so.
I then return to the first issue, and that is the Application for disqualification. I have raised with the respondent that there may well be a potential misunderstanding on his part that a complaint as to error is qualitatively different to a complaint as to conduct in circumstances of bias. I respect that the respondent disagrees with that, but in any event, I do not consider that that observation, in and of itself, is a complete answer to the Application raised by him. I do consider, however, being as generous as I can to the respondent, that his Application rests upon a foundation of there being an apprehension of bias, rather than actual bias.
The legal principle to be applied whenever there is a question over the independence or impartiality of a judge is well settled in the High Court decision of Charisteas v Charisteas [2021] HCA 29 at [11] and were also identified in the earlier High Court decision of Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 (“Ebner”). In the circumstances of this application, it is worthwhile reading out the full reference as appears in Ebner (supra) at [6] of the High Court judgment:-
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7.The apprehension of bias principle may be thought to find its jurisdiction in the importance of the basic principle that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influence the outcome. No attempt need to be made to inquire into the actual thought process of the judge or juror.
And at [8] the follow appears:-
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge or juror to decide a case other than on its legal and factual merits. The second step is no less important. 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. The bare assertion that a judge has an interest in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest and the assertion connected with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
To the extent that the respondent did not refer to what fell from the High Court in Ebner (supra), he did refer to the decision of the High Court in Johnson & Johnson (No 3)(2000) FLC 93-041 (“Johnson & Johnson”), and to indicate that there is comity in respect of the two judgments, both of Johnson & Johnson (supra) and Ebner (supra), I quote at [13] of Johnson & Johnson (supra):
13.While the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. …
The matter was succinctly summarised by Aldridge J in Adlin & Northern Territory Central Authority (No. 5) (2021) FLC 94-019 wherein his Honour said:
4.It is well established that judges have an obligation to sit on matters that are assigned to them, except where there is some good reason, such as actual bias or the reasonable apprehension of bias, for them not to sit. It is not for the litigants to pick and choose judges according to their perception as to the way that their choice might advantage or disadvantage their opponents.
(Citations omitted)
His Honour quoted from Ebner (supra) and referred to the decision of Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at p 75,378 as follows:-
352.There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.
There are therefore four potentially overlapping categories of apprehension of bias:
(1)Disqualification by interest;
(2)Disqualification by conduct;
(3)Disqualification by association; and
(4)Disqualification by extraneous information.
The matters about which the oral application for disqualification rests commence at paragraph 24 of the affidavit. What is said is unusual in its context, in the sense that paragraph 24 of the affidavit seeks to extend the respondent’s appreciation to me for overseeing the final hearing and for continually inspiring and empowering him during the proceedings. However, the first aspect relates to something that was allegedly said by me namely, “The [respondent] doesn't seek sole custody or parental responsibility of the children and does not challenge the children staying with the [applicant].” To the extent that the respondent does not assert that is an accurate recitation of what was said, it is difficult for me to place much weight on it. What is purported to have been said mirrors the orders that were sought by the respondent. It would seem to be uncontroversial and of little assistance to his Application.
It is also said, at paragraph 28 of the respondent’s affidavit, that “[I] conveyed reluctance to delve into criminal aspects, pointing to my guilty plea in an Australian court without a thorough grasp or scrutiny of the circumstances”.
Of relevance, the respondent goes further and says:
28.[Justice Berman’s] stance aligned with Magistrate Degnan’s, indicating [the applicant] wasn't involved in any criminal conduct during this ordeal, neither as an instigator nor perpetrator, but rather as a victim of domestic violence.
It is again not controversial that the respondent was represented by solicitor and counsel. That Application came about as a result of the application of section 102NA of the Act. It is difficult to understand how this could be a ground for apprehended bias in circumstances where it depends upon how ultimately, I deal with the evidence. I highlight that the evidence in respect of the criminal proceedings was predominantly provided by the respondent, by way of annexures to his trial affidavit and as a separate bundle of documents which comprised an extensive transcript of the Local Court proceedings, sentencing remarks and submissions.
What I make of those documents is a matter for the parties to ascertain once judgment is delivered, but I reject that the respondent’s view of a reluctance on my part to delve into the criminal aspects in some way aligns me to a concern that he said he had with the way that the magistrate in the Local Court dealt with the criminal proceedings. It is again a matter of court record that the respondent pleaded guilty to, and was found guilty of, serious charges for which a sentence of imprisonment was imposed.
Paragraphs 32 and 33 are not matters of evidence, but rather matters of submission. It is a belief on the part of the respondent that the Court should conduct its own investigation and reach its own conclusion, rather than relying solely on the view of other judges or magistrates.
There are, of course, a number of aspects that arise from that assertion. The first observation is that the applicant misunderstands the law as it stands. Division 12A, to which these proceedings were conducted, provides at s 69ZX(3) of the Act that:
(3) The Court may, in child-related proceedings:
(a)receive into evidence the transcript of evidence in other proceedings before:
(i) the Court; or
(ii) another court; or
(iii) a tribunal,
and draw any conclusion of fact from that transcript that it thinks proper; and
(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of the subparagraphs (a)(i) to (iii).
Division 12A was raised at the commencement of the proceedings and the provisions that were likely to be relevant to the litigation were canvassed including that there are principles for conducting child-related proceedings and they are set out in s 69ZN of the Act. As such, I do not accept that the Court has an obligation to conduct its own investigation. It is not an inquisitorial process, but rather it is adversarial. I emphasise to the respondent that he was represented by solicitor and counsel. Having said that, until and unless the judgment is considered, I do not consider that paragraph 33 has any relevance to the question of either apprehended bias, or indeed, actual bias.
Paragraph 34 relates to something to do with Family Court statements since 2020 used in the Local Court without special permission and yet can use them in this Court giving the applicant an advantage. I do not understand what paragraph 34 relates to. This is a situation where the affidavit material and the documents presented in support of the orders sought by the respondent contained extensive transcript of the Local Court proceedings. Indeed, it was the respondent that provided the assistance to the Court in the provision of those documents, rather than the applicant.
Paragraph 35 again seeks to put forward a view held by the respondent in terms of some inference that he says he was entitled to draw from comments that were made about the Local Court proceedings without me questioning the potential errors that he says the Magistrate made. As matters transpired, the Court was presented with evidence in respect of the criminal offending. Evidence was provided by the parties together with the evidence from the transcript, sentencing remarks and submissions. Again, whilst the Court is entitled to give weight to the transcripts and documents from another court, it is a matter as to what treatment the evidence was given in terms of the relevant findings.
I reject the assertion that in some way the respondent’s counsel was restricted from "transitioning between subjects during cross-examination where no such restriction was imposed upon the respondent's counsel." Significant opportunity was given to each counsel to examine and cross-examine. I considered there was a need at times for the respondent’s counsel to be given a direction as to focus. That does not in any way suggest that there was an issue relating to competency.
Division 12A enables specific directions to be made pursuant to s 69ZT in terms of the rules of evidence, s 69ZX in terms of the Court's general duties and powers relating to evidence, and, as I have indicated, s 69ZN as to the principles to be applied.
Division 12A is unusual in the sense that few other courts are given such wide discretion under the Act in terms of case management of the litigation. It was not the subject of disagreement that the proceedings complete within the five days as allowed.
Paragraph 38 of the affidavit promotes an allegation that the applicant had an affair. The mischief as identified by the respondent is that there was something about my body language and comments which implied that whether the applicant was having an affair was not a matter of interest. The respondent contrasts that with the issue relating to his affairs with two women, namely Ms FF and Ms EE. It has nothing to do with “no-fault” marriage and there is no suggestion that in some way I considered that if either of the parties were engaged in an extramarital relationship that was a factor that needed to be brought to account. The respondent well understood that the relevance of his involvement of Ms FF and Ms EE was linked to financial issues and the extent to which money were allegedly diverted from the resources of the parties to one or other or both of the women in respect of living expenses, accommodation and other financial factors.
Again, how that has been treated is a matter for the judgment and not a matter for speculation. There is no evidence nor credible suggestion by the applicant that in some way I undertook an exercise of considering the fact that the applicant may have had an extramarital affair should be considered adverse to his interests.
The final matters can be disposed of in short compass. A suggestion that in some way because I am of a similar age group to the applicant’s counsel this allows speculation as to the existence of a “pre-existing non-verbal agreement”, is nonsensical and idle speculation.
The suggestion of a pre-existing non-verbal agreement is a button pressed very faintly. The test is whether a lay observer would form a view that there exists a relationship between Mr Rosic and I which in some way would invite a finding of apprehended bias.
I also do not accept that I can bring to account a consideration by the respondent that he could have presented a stronger argument if he had had access to the transcript. Again, it is a matter for him, not a matter for the Court. It is a trite observation that the respondent was significantly assisted by the order made pursuant to s 102NA, whereas the applicant paid for her legal fees on a private basis.
The final matter, although not directly related to matters of bias, apprehended or otherwise, relates to paragraphs 43 to 49 where it is asserted by the respondent that he had ineffective assistance of counsel. There is a complaint by the respondent in paragraphs 15 to 23 of his affidavit under the heading of “Denial of Natural and Procedural” which lists the various judicial officers and registrars who have been involved in this matter prior to my involvement and about which he considers treated him unfairly. Complaint is made in respect of Judge Street in terms of his Honour's involvement on 16 September 2022, and also the liquidation of property orders made. Complaint is also made in respect of Riethmuller J in terms of orders made on 23 April 2023, and in respect of a Registrar’s involvement in dismissing the interim hearing of the children's matter without allegedly correctly evaluating the issues.
That then sets the foundation for the further complaint that the applicant's counsel, by instructing solicitor, were incompetent. In particular the last counsel was from a non-English speaking background and had recently become a barrister. No application was made during the course of the proceedings, either by the applicant or via his solicitor, that there was no longer confidence in counsel. I do not consider that there is cogent information contained in paragraphs 43 to 49 inclusive, that would allow consideration that counsel and/or the instructing solicitor were of such a level of incompetence that it amounted to effectively no representation at all.
Paragraph 50, as I have already indicated, is difficult to understand. Paragraphs 51 to 65 seek to go through the evidence that was presented in Court and to lay blame at the feet of both Mr LL and Ms MM in terms of the quality of their representation in the criminal proceedings. In effect, what I think is being asserted, whilst not a matter for me and certainly not an issue relevant to the current proceedings, is that he was induced to enter pleas of guilty in the criminal proceedings, to offences to which he was not guilty. No evidence was presented during the course of the final hearing in that regard and certainly there was no suggestion that either of his previous solicitors were to be called to give evidence as to their lack of competence, instruction or the conduct of the criminal proceedings.
Having considered those matters, I dismiss the application that I recuse myself on the basis of either apprehended bias or actual bias.
The question now turns to the application to reopen the proceedings in order to adduce further evidence. The authorities in respect of the circumstances in which leave to adduce evidence should be given are well understood. They are set out, in particular, in the decisions of Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, and in particular, the High Court decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27. The overarching principle is that to grant leave to adduce further evidence is an exercise of discretion but must be guided and tempered by the interests of justice. It is also a factor as to when the application is made.
Even in respect of an application to reopen, I am obliged to consider the provisions of Division 12A of the Act. In particular, whilst obviously I am obliged to try and deal with the proceedings in the most efficient way that is possible, I need to consider the issues affecting the children, that the proceedings will safeguard matters in respect of the child, and to ensure the proceedings are conducted efficiently, but without undue delay, legal formality, technicality and form. There must always be a balance in terms of the applicant of those principles and the need to ensure a fair hearing.
In Murray v Figge (1974) 4 ALR 612, Muirhead J referred to the three-tier test that fresh evidence should only be admitted when firstly it was so material that the interests of justice required the receipt of the evidence, secondly, the evidence, if believed, would probably affect the result, and thirdly, the evidence could not, by reasonable diligence, have been discovered beforehand.
In this case, there is little or no assistance provided in the affidavit in support of the application as to the nature of the evidence that would be adduced if an opportunity was given. I am not able to assess that the material was such that the interests of justice required the receipt of it. I am also not able to determine whether if it was received, it would affect the result. I am able to determine that significant and proper opportunity has been given to the parties, and in particular the respondent, given these proceedings have been on foot since 2020, that the evidence could have been provided and introduced during the course of the substantive hearing. There is nothing in the affidavit material filed by the respondent in support of his order sought that would enable me to find a reason why the evidence, whatever it might be, could not have been presented during the course of the Court proceedings.
It is relevant that the proceedings had concluded but for the reservation of judgment. The test must necessarily be a high one and there must be a significant level of rigour that is attached to a consideration as to whether the proceedings should be reopened and whether it is in the interests of justice that further evidence be presented.
There is no offer as to any question of costs that would arise, which, of necessity, would be a matter under active consideration given that the applicant does not criticise the respondent, but rather considers that there is evidence but that his counsel and his solicitor should have introduced it or advised him in respect of any impediment thereto.
As such, I dismiss the application to adduce further evidence.
I make orders as appear at the commencement of these reasons.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 19 June 2024
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