Ebner v The Official Trustee in Bankruptcy

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).

1. These are parenting and property proceedings that were commenced originally on 9 November 2022 in relation to a child, X, born in 2020.
2. The matter was listed for a final hearing that commenced yesterday as a result of orders that had been made by the Court fixing the matter for trial. Those orders that were made on 10 May 2024 included orders that identified in order 27 that leave is granted to the ICL to file and serve a case outline on or before 30 April 2025.
3. The matter is one in which it was listed to commenced at 10:00am yesterday and this Court has another matter being a child maintenance support matter that it heard before the commencement of this matter at 2:00 pm. In terms of the hearing, the Court did identify to the parties that it would hear that matter beforehand at 10:00am and explained that it expected the parties to try and have meaningful discussions in respect of the parenting issues concerning the child and was informed that the child is now spending four nights per fortnight with the father.
4. The Court also raised the sequence in which the parties might try and discuss the resolution being first discussing the parenting matter and then the property matter and identified that the Court expected the ICL to assist the parties trying to resolve the matter.
5. Prior to the commencement of the hearing, it was identified that there was concern as to the duration of the hearing and the availability of the child expert Dr C and an identification that the parties wanted the evidence concluded before Dr C gave evidence. The Court foreshadowed, but that was an issue that could be addressed at the time on Wednesday, when Dr C may be available.
6. At the commencement of the hearing proper, the Court admitted into evidence the relevant affidavits and exhibits and commenced hearing the applicant mother's evidence. At approximately 3:50pm the Court adjourned the mother's evidence to make inquiries about the likely further duration of the cross examination of the mother as well as the potential timing of Dr C's evidence. The Court then turned to the issue concerning encouraging the parties to see if they could explore resolution and the Court requested, but did not direct the ICL to prepare a potential minute.
7. In respect of the parenting matter, it is standard practice for the ICL to prepare a proposed minute. In the present case the ICL's submissions did not contain a minute but identified a desire to await the conclusion of evidence from Dr C. The Court identified to the ICL that it wanted the ICL to assist the parties in trying to advance resolution by preparing a minute that addressed the issues apparent on the proceedings in respect of the potential progression of time from four nights per fortnight to potentially at some stage equal time. The Court identified that it wanted the minute to address the other issues between the parties in relation to long term decision making and parental responsibility, and identified that if it was the case that the ICL was putting forward other than joint parental responsibility, sole parental responsibility by the mother that the ICL may want to consider whether there is a carve out in respect of medical and therapy issues.
8. The Court identified it wanted the ICL to address the issue of name change, which was raised by the applicant.
9. At the commencement of the hearing this morning, Ms Beck on behalf of the applicant asked the Court to recuse itself on the basis that it was alleged the Court had directed the ICL to circulate a minute that resolved the spend time issue as to equal time and that there was a direction as to resolving the issue as to sole parental responsibility and carve out on medical issues.
10. Ms Beck identified that Dr C had not yet given evidence and that the cross-examination had only commenced at lunchtime yesterday and that the case was at an early stage.
11. The value of the property pool in the present case is not significant and it was identified yesterday afternoon that if the applicant were to quantify the amount they were seeking, it reflected a sum of $273,210.00 from the property pool and that the respondent identified an amount of $60,000 to $70,000 from the property pool.
12. Ms Beck referred to the principles in respect of an application on the grounds of apprehended bias, as identified in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; [2000] 205 CLR 337 [7,8], and submitted that the conduct identified was an appropriate case for recusal. Mr Iuliano Counsel for the ICL, adopted the position of Ms Beck. Ms McMahon, counsel on behalf of the respondent remained neutral in respect of the disqualification application.
13. The Court is mindful of the principles in s 69ZN of the Family Law Act 1975 (Cth) ("the Act") that apply to hearings insofar as they are parenting proceedings. Section 69ZN of the Act is as follows:

Application of the principles

(1) The court must give effect to the principles in this section:

(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child - related proceedings; and

(b) in making other decisions about the conduct of child - related proceedings

Failure to do so does not invalidate the proceedings or any order made in them.

(2) Regard is to be had to the principles in interpreting this Division.

Principle 1

(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings .

Principle 2

(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings .

Principle 3

(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:

(a) the child concerned from being subjected to, or exposed to, abuse , neglect or family violence ; and

(b) the parties to the proceedings against family violence .

Principle 4

(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child -focused parenting by the parties.

Principle 5

(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

1. The Court is also mindful of the provisions in s 95 of the Act in relation to the conduct of proceedings in this Court. Section 95 is as follows:

Overarching purpose of the family law practice and procedure provisions

(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

(a) in a way that ensures the safety of families and children ; and

(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration--in a way that promotes the best interests of the child ; and

(c) according to law; and

(d) as quickly, inexpensively and efficiently as possible.

Note: For family law practice and procedure provisions , see subsection (4).

(2) Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act :

(a) the just determination of all such proceedings ;

(b) the efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings ;

(c) the efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings ;

(d) the disposal of all such proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make applicable Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The family law practice and procedure provisions are the following, so far as they apply in relation to proceedings under this Act :

(a) the applicable Rules of Court ;

(b) any other provision made by or under this Act , or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia or any other court .

1. In applying the double might fair minded test in respect of a reasonably informed fair minded lay observer the Court is not satisfied that the conduct identified meets the double might test for a reasonably informed fair minded lay observer. A reasonably informed fair minded lay observer would readily appreciate the narrow nature of the potential issues in this case and the need for the Court to exercise control over the proceedings. A reasonably informed fair minded lay observer would appreciate that the Court had not in fact directed the ICL but had requested the ICL to turn their mind to the issues in circumstances where there was no existing circulated minute from the ICL. A reasonably informed fair minded lay observer would appreciate the difference between a direction and a request. A reasonably informed fair minded lay observer would also appreciate that the Court has a duty to try and encourage the parties to see if they can advance a resolution of the proceeding consensually which would reflect insight by both parties as to the best interests of the child.
2. The Court does not accept that the raising of the issue of a request of a minute of be circulated by the ICL is conduct by reason of which a fair minded lay observer might reasonably apprehend that this Court might not bring and independent impartial mind to the determination of the matter on its merits.
3. It is for these reasons that the application for recusal is dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Street.