Family Law Case Notes

CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK

PROPERTY – 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 identifi ed. 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 diffi cult 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.

PROPERTY – 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 AinslieWallace J agreed) said (from [48]):

“( … ) Reversibility and the ability to take the payment into account in the fi nal hearing are considerations of fl uctuating relevance having regard to the source of power under which the payment is sought. …

[49] It is … signifi cant 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 fi nal 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 fi nal 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 fi nal 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.

CHILDREN – 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 specifi c 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