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Latest Notable Cases samples

This is a sample (posted 14 July 2018) of "latest notable cases", which is posted monthly with live links for members at the Members' Home Page under Members' Practice News. Also available at our Members' Home Page (along with our E-Book, our up-to-the-minute family law and child support practice news, our online forms and precedents and our free legal help line) is our online members' Archive of all our back issue indexed case notes (assembled by topic and with live links to AustLII), useful papers and client brochures.

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Property – Judge who declined to make consent orders that were “manifestly inadequate” for the wife was disqualified on appeal from further hearing the case – Apprehension of bias

In Silva & Phoenix [2018] FamCAFC 41 (7 March 2018) Strickland J (sitting in the appellate jurisdiction of the Family Court of Australia) heard the husband’s appeal against Judge Kelly’s order dismissing the husband’s application that he disqualify himself, having refused to make consent orders minuted by the parties. The terms provided for the husband to pay the wife $30,000, about 10 per cent of the asset pool.

A statement of agreed facts was filed upon the direction of Judge Kelly, the matter being then listed for submissions. The Court was not prepared to make the orders (for being “manifestly inadequate” for the wife) and listed the matter for trial. The husband then filed an Application in a Case seeking disqualification of the judge on the ground of actual or apprehended bias. Judge Kelly dismissed the application, whereupon the husband appealed.

Citing Johnson v Johnson (2000) 201 CLR 488, Strickland J said (from [16]):

“( … ) [T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias, is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. ( … )

( … )

[18] It is said [by senior counsel for the husband] that his Honour’s comments at the hearing … demonstrated ‘an ineradicable apprehension of pre-judgment’. The complaint is that instead of expressing a ‘tentative view’ his Honour was making a definitive statement.

[19] What his Honour said was as follows: ( … )

‘ … the court has to be satisfied that it’s just and equitable for the orders that are being proposed to be made. …

… I see that the respondent has a medical condition; he has suffered an ischaemic stroke … at the moment I have no information about his current condition, it being some nearly 16 months later, and I will not be able to make any order in this matter until I am satisfied as to what his current medical condition is. That will require medical evidence

The other aspect of it concerns the proposed division. …There now is a statement of agreed facts and that indicates that the wife is to receive less than 10 per cent.

On any view of the authorities, that is, in my view, manifestly inadequate. …

… I am concerned that an award of nine per cent for even a relatively brief marriage is not just or equitable and I cannot approve it and will not approve it. …

[20] The submission is that the comments made by his Honour made it clear that the application by the husband would not succeed, and, not only would there be an adjustment in the wife’s favour, but such an adjustment would be greater than the proposed settlement of approximately 10 per cent.

[21] However, what is forgotten here is that his Honour was being asked by both parties to make consent orders. To do that his Honour had to be satisfied on the material before him that it was just and equitable to make the orders sought. Thus, it was not a matter of his Honour providing a tentative view in the context of actively managing a case; his Honour had to come to a view, and he did that.

[22] That said, given that the proceedings then had to be listed for a defended hearing, the question is, in that context, can it be said that his Honour has pre-judged the issue in dispute. That depends on whether his Honour’s comments can be confined to the application that was before him, or whether it demonstrates a closed mind that will not be changed when the subsequent hearing takes place.

[23] Although an argument could be mounted that it is the former, on the basis that a judicial officer is able to put aside his views in rejecting the consent orders, and bring an open mind to the subsequent hearing when there will be far more evidence put before him, the test is still whether ‘a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide’.

[24] In my view, it is undeniable that that test is satisfied here. ( … )”

The appeal was allowed and an order made that Judge Kelly be disqualified from further hearing the property applications between the parties.


NOTE – A further 6 cases are summarised for members this month at our Members’ Home Page under “latest notable cases” under the following headings:

Children – Birth mother successfully appeals declaration that sperm donor was a parent of her eldest child – Section 14 of the Status of Children Act 1996 (NSW) applies as to parentage by virtue of s 79 of the Judiciary Act 1903 (Cth) – Status of sperm donors is pursuant to State or Territory law not s 60H FLA (“children born as a result of artificial conception” during marriage or de facto relationship)

Children – Husband who absconded with the children to India in 2013 fails in his appeal of final order for no time – Full Court did vary the order by deleting the words “until they each attain the age of 18 years” – It was “highly speculative” that the reasons for no time with the children would continue to exist throughout their childhood

Maintenance – Interim order – Respondent required funds to renew her real estate licence – Court erred in considering the appellant’s property but not his liabilities and in disregarding his support of his new de facto partner and her children – Paras (d) and (e) of ss 75(2) and 90SF(3) FLA explained

Financial agreement – Absence of advice (or any option but to sign) and hardship from a material change in circumstances relating to wife’s care of a disabled child not found proved – Grossly unreasonable terms, without more, cannot support a case for undue influence – Pre-nuptial agreement upheld where wife’s solicitor had negotiated amendments for better terms

Financial agreement – Provision for wife to receive net proceeds of sale of home in which she lived but which parties delayed selling for 8 years – Expense incurred meantime by wife for renovations and by husband for repayments and drawings for his business – Husband’s claim for equitable relief dismissed

Property – Court’s power to order removal and use of posthumous sperm – Supreme Court of Queensland permits deceased’s sperm to be used in artificial conception procedure – Held that the sperm was “property” capable of being possessed