Ebner v Official Trustee in Bankruptcy

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 Matthews & Norris (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The husband, Mr Matthews, and the wife, Ms Norris, married in 2009. The parties separated in 2015 and divorced in 2018. There is one child of the marriage, B, who is aged 15 years and lives with the husband.
2. The parties have been embroiled in litigation in this Court since 2015. At that time, the husband commenced proceedings seeking orders in relation to both parenting and property. Final parenting orders were made in June 2017. The parties' child has lived with the husband since that time. There have been subsequent applications filed with respect to parenting issues. Most recently, final parenting orders were made by McNab J on 6 December 2024, following a contested final hearing.
3. The parties' competing property applications first came before the Court for final hearing in 2019. After a contested final hearing, final property orders were made in 2020. Those orders were the subject of a successful appeal, and the matter was remitted for rehearing; those orders of the Full Court were made in 2022. The matter was allocated to my docket in August 2023.
4. The final hearing before me continued over five days in 2024. The matter was adjourned at the conclusion of the hearing to enable the wife to file written closing submissions, in circumstances where she was self-represented and sought that opportunity.
5. Due to the issues that emerged with respect to the marking of exhibits tendered during the course of the final hearing, the matter was called on for mention before me in June 2025 to clarify those matters. Directions were made for the parties to each file and serve a list of the documents annexed to their trial affidavit sought to be relied on as tendered evidence, and the proceedings were otherwise adjourned for further mention upon consideration of that material.
6. At the adjourned mention hearing, the husband's counsel indicated that it was his client's intent to seek leave to reopen the case to admit further evidence. Again, the proceeding was adjourned to enable the parties to consider their respective positions in relation to those matters.
7. In August 2025, the husband filed an Application in a Proceeding in which he sought leave to reopen the case to adduce additional evidence. Further, he sought orders that the wife file and serve an affidavit with respect to her dealings with her superannuation interests. In her Response to Application in a Proceeding filed on 14 October 2025, the wife sought, inter alia, that the husband's application be dismissed and otherwise sought interim parenting orders, and orders that the husband's legal team be found in contempt of Court. Those competing applications were listed for hearing in November 2025.
8. At the time of the final hearing and since, the wife has sought final property orders that each party retain the assets in their possession and/or control. For his part, the husband's position at the time of trial was that the parties' interests ought to be divided by way of a 65/35 split in his favour. Those were the pending applications for final orders at the time the judgment was reserved.
9. In September 2025, the Court was informed that the husband had been declared bankrupt.
10. In September 2025, Mr CS of CT Insolvency Service was appointed trustee in bankruptcy of the husband's estate. Mr CS was given notice of these proceedings, and the hearing of the parties' competing applications for leave to adduce further evidence was adjourned to afford Mr CS the opportunity to consider whether he wished to participate in the proceedings on behalf of the bankrupt estate.
11. On 13 November 2025, Mr CS informed the Court by email that the trustee in bankruptcy did not intend to participate in the proceedings as the estate was without funds and was unable to meet the costs associated with pursuing the matter.
12. At the adjourned case management hearing on 17 November 2025, the husband appeared in person and informed the Court that he did not seek to press his claims for final property orders. The husband conceded that it was appropriate that his application for final orders be dismissed. That day, I made orders as follows:
    1. The Amended Initiating Application filed 6 February 2024 and the Application in a Proceeding filed 28 August 2025 be dismissed.
    2. Paragraph 6 of the Respondent's Response to Application in a Proceeding filed 4 March 2024 and paragraphs 2 and 3 of her Response to an Application in a Proceeding filed 14 October 2025 be adjourned for a Directions Hearing at 10.30am on 12 December 2025.

AND THE COURT NOTES

1. The Applicant Husband has been declared bankrupt.

2. The Trustee in Bankruptcy has notified this Court that it does not intend to participate in these proceedings as it has assessed that the Bankrupt's Estate is without funds and is unable to meet the costs associated with pursuing the proceedings.

3. It is as a result of those matters that the Applicant has informed the Court that he does not intend to pursue the pending applications for financial relief and submits that his applications ought be dismissed.

4. The Respondent's applications for final property relief have been adjourned to enable her to consider her position and obtain advice with respect to her pending application for final orders.

5. The final order sought by the respondent is as follows:-

   1. Each party to keep the respective property/assets/liabilities in their sole names or those names of which the party controls.

6. The Court has informed the Respondent that in circumstances where the only final order she seeks is that she retain assets in her name or control, there would appear to be little utility in continuing these proceedings.

1. At the time those orders were made, the wife indicated that she sought time to consider her position with respect to her application for final property orders. At that hearing, the Court informed the wife that in circumstances where the only final order she sought is that she retain assets in her name or control, there would appear to be little utility in pursuing the matters before the Court. The matter was otherwise adjourned to 12 December 2025 to enable the wife to take advice and consider her position.
2. Upon resumption of the hearing this day, the wife indicated that she sought to make an oral application that I recuse myself as the trial judge. She contended that during the course of the trial I had called her a liar, that the solicitors for the husband had misled the Court throughout the proceedings, and that I had failed to acknowledge those matters. In short, the wife contended that the matter needed to be referred to another judge, a judge who was not biased, for re-hearing. The wife also complained as to the husband's refusal to make full and frank disclosure. The wife contended that she did not consider that it was appropriate that I dismiss her applications currently before the Court.
3. These are my reasons for judgment with respect to:

(a) The wife's application that I recuse myself on the basis of bias or apprehended bias; and

(b) The wife's Response to Initiating Application for Final Orders with respect to property.

1. The law in relation to actual bias was helpfully summarised by the Full Court in the decision of Newett & Newett (No. 2) (2021) FLC 94-051. It stated as follows:
   1. The test for actual bias requires the appellant to establish that the judge's mind was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented" (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] and [176]).
   2. The relevant principles were helpfully summarised in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[70]:
      1. 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."

1. The High Court, in the decision of Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 identified the test for what constitutes an apprehension of bias at [6] to [8] as follows:

[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 justification 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 other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) 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 influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

[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 (or juror) 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 asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

1. The difficulty with the wife's application that I disqualify myself on the basis of bias or apprehended bias is that she has adduced no material or evidence in support of that claim. As to the allegation that I called her a liar during the course of the trial, the wife adduced no evidence to support that contention. The transcript of the proceedings was not produced by her.
2. The wife has had in excess of a month to consider her position and to file evidence in support of her claims. She has not done so. None of the submissions or complaints made by the wife as to my alleged conduct establish bias by me against the wife.
3. It is unclear to me how alleged non-disclosure by the husband can found an allegation that a judge is biased, or that there should be some apprehension of bias by that judge.
4. The wife's allegations are more troubling in circumstances where no application was raised by her during the course of the trial in relation to my conduct. Further, there have been no fewer than four case management hearings since the final hearing, where the wife has had opportunity to ventilate these issues and put evidence before the Court to support her contentions. She has not done so.
5. Most recently, these proceedings were adjourned on 17 November to this date to afford the wife the opportunity to consider her position with respect to the extant proceedings. Notwithstanding that adjournment, the wife has not availed herself of the opportunity to produce any evidence to the Court to support her current contentions as to my alleged bias.
6. The fact that the wife perceives me to be biased does not establish bias or an apprehension of bias. An assessment of those allegations must be made from the point of view of a fair-minded lay observer; the question is whether such a person "might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".
7. The reality is that throughout these proceedings, I have been at pains to ensure that the wife has understood Court processes and has had opportunity to fairly put her case. To that end, at each stage of the proceedings, I have explained to the wife the Court process and afforded her the opportunity to seek clarification of those processes. The proceedings have been adjourned on numerous occasions to enable the wife to consider her position and put evidence before the Court. Whilst I may have been critical of the manner in which the wife gave aspects of her oral evidence at trial, such criticism does not found or establish bias. That is the role of a judge in the management of the Court; it does not indicate bias.
8. Having regard to those matters, I am not satisfied that the wife has established actual bias or the existence of an apprehension of bias. In those circumstances, I dismiss her oral application that I recuse myself on that basis.

1. In her Response to Initiating Application filed 4 March 2024, the wife seeks final property orders as follows:-
   1. Each party to keep the respective property/assets/liabilities in their sole names or those names of which [sic] the party controls.
2. That was the application prosecuted by the wife during the final hearing.
3. As noted earlier, the husband is a declared bankrupt and his estate is managed by a trustee in bankruptcy. That trustee has elected not to participate in these proceedings, in circumstances where he has assessed that the bankrupt estate of the husband is without funds and is unable to meet the costs associated with pursuing the property proceedings. It is against that backdrop that with the consent of the husband, his application for final property orders was dismissed.
4. Given those matters, and in circumstances where the husband did not have standing to press his claim, having regard to the provisions of s 60 of the Bankruptcy Act 1966 (Cth), I dismissed the husband's application for final property orders.
5. Notwithstanding the husband's claim having been dismissed, the wife agitated today for orders in respect of disclosure against the husband and the trustee in bankruptcy.
6. In circumstances where the wife's only application before the Court in respect of final property orders is that she retain assets within her possession or control, there is no utility in the continuation of these proceedings. The dismissal of the wife's application will result in her obtaining exactly that which she seeks, to retain the assets and interests within her possession or control. Given that position, in my view there is no utility in making orders for disclosure as sought by her.
7. During the course of submissions, I endeavoured to inform the wife of the effect of the dismissal of her application, to no avail. She was steadfast in her insistence that the proceedings ought continue.
8. The proceedings have now been on foot for in excess of 10 years. There have been two contested hearings in relation to both property and parenting matters. Further, there has been an appeal to the Full Court with respect to the original property judgment. Significant court resources have been expended in the prosecution of these matters.
9. The husband has also expended significant funds on lawyers in the prosecution of his claim. For the most part, the wife has been self-represented.
10. At the end of 10 years of litigation in relation to property matters, the husband is now bankrupt. The wife lives in New Zealand and holds assets and interests there. The orders she seeks from the Court are that she be permitted to retain those assets within her possession or control. In those circumstances, I am satisfied that there is no utility in the continuation of these proceedings. Accordingly, I am satisfied that the wife's application for final property orders ought be dismissed. Accordingly, I will make an order to that effect.
11. As to the matters agitated by the wife in her Response to an Application in a Proceeding, namely that the husband's lawyers be found in contempt of Court and dealt with separately from this matter, the wife did not make any submission in regard to that part of her application today. Again, there would seem to be little purpose in the continuation of those matters, particularly in circumstances where the husband's application has been dismissed. Similarly, I am satisfied that there is no utility in the continuation of the wife's application seeking to prevent the husband from filing further applications in circumstances where he has sought and obtained a dismissal of his application and has no pending proceedings before the Court. Having regard to all of those matters, I will therefore dismiss that part of the wife's application.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.