By and -

Key decisions

  • Charisteas [2021] HCA 29
  • Lao & Zeng [2021]
  • Demeny & Ogden [2021]
  • Agambar [2021] FedCFamC1A


Private contact between barrister and judge while case was under way gives rise to apprehended bias

In Charisteas [2021] HCA 29 (6 October 2021) the High Court of Australia (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ) considered a recusal application on the ground of apprehended bias.

The High Court said (from [14]):

‘… [W]hat is said might have led the trial judge to decide the case other than on its legal and factual merits was identified. It comprised the various communications between the trial judge and the wife’s barrister “otherwise than in the presence of or with the previous knowledge and consent of” [cf Magistrates’ Court at Lilydale [1973] VR 122 at 127] the other parties to the litigation. … The communications should not have taken place. …

[15] A fairminded lay observer … would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. …

[18] … The apprehension of bias principle is so important to perceptions of independence and impartiality “that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined” (emphasis added) Ebner [2000] HCA 63 (‘Ebner’). …

[19] The lack of disclosure in this case is particularly troubling. It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications …

[21] … The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. …

[22] It may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections. … [T]heir contact may be resumed … by a judge making orders and publishing reasons, thereby bringing the litigation to an end. …’

The appeal was allowed and the matter remitted for rehearing with costs.


Litigation funding order against third party – irreversibility of order at final hearing not fatal to application

In Lao & Zeng [2021] FedCFamC1A 17 (23 September 2021) the Full Court (Ainslie-Wallace, Ryan & Austin JJ) considered a litigation funding order that required the wife’s mother to pay $350,000 towards the husband’s legal fees.

The wife’s legal fees were funded by her mother, the husband seeking that the mother also pay his fees.

As to the reversibility of the litigation funding order, Ryan J (with whom Ainslie-Wallace J agreed) said (from [48]):

‘ … Reversibility and the ability to take the payment into account in the final hearing are considerations of fluctuating relevance having regard to the source of power under which the payment is sought. …

[49] It is … significant that in [Zschokke [1996] FamCA 79] … the Full Court said that there must be a question about whether it is possible to make a litigation funding order
under s 117(2) even though the order could not be taken into account in a final hearing. For example in parenting proceedings or where no right of action exists under s 79. If their Honours considered that reversibility and the ability to take the amount into account in a final property hearing was an essential element to the exercise of power under s 117(2) it follows that in the examples given such an order could not be made. …

[50] … [T]here will be cases where even though the amount paid may not be able to be … taken into account in the final hearing, the interests of justice may nevertheless justify an order under s 117(2) for interim funding or security for costs.’

The majority dismissed the appeal with costs.


Section 90SN – sale of real properties for less than anticipated – no miscarriage of justice or impracticability

In Demeny & Ogden [2021] FedCFamC1A 21 (27 September 2021) Strickland, Ainslie-Wallace and Aldridge JJ considered consent orders that required the sale of four properties to discharge loans, the balance to be divided equally between the parties.

The properties sold for unexpected amounts, which resulted in a property which the husband was to otherwise retain remaining encumbered.

At first instance, Mr Ogden sought a variation to achieve an equal division. Judge Kari varied the original orders to reduce the amount payable to Ms Demeny on the ground that the orders were impracticable and that the orders had not achieved the intended division of property, such that a miscarriage of justice had occurred. Ms Demeny appealed, arguing that any shortfall in repayments was to be borne by Mr Odgen.

The Full Court said (from [26]):

‘This case is an example of the difficulties that arise when orders require property to be sold and where the orders divide the proceeds not by way of percentage entitlements, but by payment of a fixed sum. …

[48] We are comfortably satisfied that the intention of the parties … was for an equal division of their property. Whilst the parties turned their minds to how that would be achieved if the properties sold for more than what was expected, they did not, in the consent orders at least, address the issue of a shortfall.

[69] … The orders are still capable of being carried out.

[70] It is well established that orders which can be put into effect are not rendered impracticable simply because they produce a different outcome to that which was intended (Rohde and Rohde [1984] FamCA 41…; La Rocca and La Rocca [1991] FamCA 97; Cawthorn v Cawthorn [1998] FamCA 37 and Sanger & Sanger [2011] FamCAFC 210).

[71] It follows that a finding that it was impracticable to carry out the consent orders could not have been made.’

The Full Court allowed the appeal, remitted the enforcement application for rehearing and ordered costs certificates.

‘The lack of disclosure in this case is particularly troubling. It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications …’


Parental responsibility – no error in vesting solicitor with parental responsibility for limited purpose of a tort claim against mother

In Agambar [2021] FedCFamC1A 1 (2 September 2021) the Full Court (Strickland, Austin and Baumann JJ) heard a father’s appeal from a decision that vested a solicitor with parental responsibility for the limited purpose of instructing lawyers to act on behalf of the children in tort claims against their mother.

Weeks after separation, the mother lost control of her car and crashed while driving the parties’ three children. One child was killed and the other two were injured.

The children had personal injury claims against the mother.

The mother conceded that she could not act as litigation guardian and sought ‘Mr B’ to be given parental responsibility for the limited purpose of instructing lawyers to act in the tort claims.

Dealing with the father’s complaint as to the interference with the parents’ parental responsibility, the Full Court said (from [38]):

‘… In VR & RR [2002] FamCA 320 (‘VR & RR’) the Full Court … dismissed the aspect of the appeal which concerned the trespass upon parental autonomy by the appealed orders …

[39] The Full Court … recognised how the circumstances which are peculiar to a specific case might justify judicial interference with the parental responsibility vested in parents either by law or former court order. … [T]he primary judge’s interference with the allocation of parental responsibility was warranted because both parents desired it to resolve their impasse so the children’s welfare could be clearly advanced. Both parents sought an order interfering with their existing equal shared parental responsibility …

[40] The application of the general rule of which the Full Court spoke in VR & RR (at [29]) does not impugn the primary judge’s decision here … because any parental responsibility with which a parent is seized only exists so long as no contrary court order is made. The Act expressly envisages that parental responsibility can be vested in adults other than the child’s parents (ss 61D(1), 64B(2), 64C, 65C, 65G(1A) and 65P) and it is now well established that there is no presumption in favour of parents over non-parents in the determination of proper orders to resolve parenting disputes …

[43] Since the primary judge appreciated the gravamen of the decision … and nevertheless decided to invest Mr B with the discrete portion of parental responsibility which was in dispute, the father’s complaint under this ground of appeal was all but exhausted because he was unable to contend the law necessarily precluded his Honour from giving the confined aspect of parental responsibility to Mr B …’

The father’s appeal was dismissed with costs.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law book and Accredited Specialists in Family Law.