Aritza & Aritza
[2025] FedCFamC1A 108
•4 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Aritza & Aritza [2025] FedCFamC1A 108
Appeal from: Aritza & Aritza (No 2) [2024] FedCFamC2F 1841 Appeal number(s): NAA 360 of 2024 File number(s): SYC 4856 of 2023 Judgment of: WILLIAMS J Date of judgment: 4 July 2025 Catchwords: FAMILY LAW – APPEAL – Property – Where the appellant contends the conduct of the primary judge gave rise to apprehension of bias in circumstances, where prior to final submissions of counsel, the primary judge foreshadowed orders intended to be made - where the appellant contends the primary judge employed a defective reasoning process – where the appellant contends the primary judge failed to give adequate reasons – where the appellant contends the primary judged exercised discretion incorrectly – Appeal allowed and costs certificates granted Legislation: Family Law Act 1975 (Cth): Part VIII, ss 75(2), 75(o), 79(4) Cases cited: CNY17 v Minister for Immigration and Border Protection
Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 2000 [HCA] 63
Fowles & Fowles (No 2) (2024) FLC 94 – 198; [2024] FedCFamC1A 115
House v The King (1936) 55 CLR 499 at 504–505
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Marcin & Marcin (2000) FLC 93 – 956; [2020] FamCAFC 85
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Number of paragraphs: 102 Date of hearing: 9 May 2025 Place: Melbourne Counsel for the Appellant Mr C Othen SC Solicitor for the Appellant: Lighthouse Law Group Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: King & York Lawyers ORDERS
NAA 360 of 2024
SYC 4856 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ARITZA
Appellant
AND: MS ARITZA
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
4 JULY 2025
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The matter be remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
3.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
4.The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
5.The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of the costs incurred by each party in relation to the new trial granted by these orders.
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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
By an Amended Notice of Appeal filed 7 March 2025, the appellant seeks leave to appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) (“the primary judge”) on 28 November 2024 (“the appealed orders”).
The appealed orders determined the respective applications of the parties under Part VIII of the Family Law Act 1975 (“Cth”) (“the Act”).
The appellant contends the appealed orders are infected by apprehended bias on the part of the primary judge, legal error, failure to provide adequate reasons, defective reasoning process, failure to make relevant findings of facts, failure to consider relevant matters and the exercise of discretion is plainly wrong.
The respondent resisted the appeal.
For the reasons that follow, the appeal will be allowed, and the matter will be remitted for hearing before a judge other than the primary judge.
BACKGROUND
The appellant and the respondent married in 1999. The appellant contends they separated in February 2021, when the respondent left the family home with the two older children. The respondent contends they separated in 2018, although they remained living under the same roof until February 2021.
They have three children aged 20, 19 and 17. The appellant contends the youngest child remains living with him, with the respondent asserting the child has lived with his grandparents since October 2023. The two older children spend equal time with each parent, although the respondent contends they spend more time with her than with their father.
The appellant was employed throughout the marriage as a part time health professional and otherwise assisted his parents to run a store at a market.
The respondent was employed from the commencement of the marriage until 2007, when she left employment and focused on her role as primary carer for the children.
At the commencement of the marriage the appellant owned a property at Suburb K and the respondent contended she had a half interest in a unit at Suburb B, $40,000 of savings and some superannuation.
In 1998, the parties purchased a property at Suburb C for $384,000. The parties dispute how the purchase was funded. The respondent contended her father advanced over $220,000 and the balance was secured by a mortgage from the NAB. She also contends they agreed the appellant’s income and rent from the Suburb K property would be utilised to meet the mortgage payments. The Appellant contends he also contributed funds to the purchase of this property.
In 2005, the respondent asserts she purchased a property in Region H for $231,000, which comprised $52,000 of her savings and the balance by a mortgage from J Bank. The appellant claimed he contributed $47,000 of his savings to the purchase of the property. According to the respondent, she paid the mortgage instalments until the property was sold in 2011.
In 2008, the parties purchased a property at Suburb E for $645,000. The respondent asserted the purchase price was funded by joint savings of $55,100 from her account and $9,000 from the appellants’ account. The balance was funded by a mortgage from J Bank. According to the respondent, the appellant partially demolished the property in 2011 which resulted in a snake and rodent infestation. The appellant contends works were carried out pursuant to a notice from the relevant authority and his father paid $35,000 for works.
In 2009, the respondent’s father died and thereafter she inherited an apartment in Suburb B, which she still owns, and a half share of a property in Suburb D. The Suburb D property was sold in 2012 for $708,000.
In 2010, the parties purchased a property in Suburb F, (referred to in the orders as the G Street property) for $1,810,000.
The respondent claims the purchase of the Suburb F property was funded by a loan from her brother of $600,000, funds of $50,000 from the sale of the City H property, $109,000 from the appellant and the balance by way of mortgage.
The respondent contended her brother was subsequently repaid from her share of the proceeds of sale of the Suburb D property and cash from the appellant, so that the amount outstanding to her brother at the time of the trial could be less than $100,000. The brother claimed the amount outstanding to him was $4,000, noting that he decided to waive the interest payments originally agreed to by the parties. The appellant contended the respondent retained her share of the proceeds of sale of the Suburb D property.
The appellant claimed the Suburb F property was purchased with funds comprising a loan of $1,000,000 from the CBA, a gift from his parents of $200,000, a loan from the respondent’s brother of $300,000 and the balance from savings and redraw of the mortgages secured against the Suburb K and Suburb E properties. He also contended the proceeds of sale of shares owned by him, $150,000 to $160,000 was deposited into the home loan secured against the Suburb F property.
In late 2019, the appellant unilaterally sold the Suburb K property for $725,000 and deposited the sale proceeds into his CBA account. The parties were in dispute about the disposition of the proceeds of sale by the appellant.
The respondent contends in March 2021 the respondent began to use the J Bank line of credit to fund his living expenses, despite him having the proceeds of Suburb K in his account.
In mid-2023, the appellant sold the market stall for $30,000.
Many of the factual controversies between the parties were not the subject of direct findings by the primary judge. Rather the reasons recited the claims of the respondent at [8] – [126] and the claims of the appellant at [138] – [230], absent findings. The reasons reflect limited factual findings under the heading Findings and Conclusions.
The four-day trial before the primary judge commenced on 25 November 2024 and orders were made on the last day of the trial, 28 November 2024. Reasons were delivered on 18 December 2024.
THE APPEAL
Turning now to the grounds of appeal referred to in the Amended Notice of Appeal.
I will first deal with the issue of apprehended bias and denial of procedural fairness, then each of the subsequent grounds of appeal. That is because a finding of apprehended bias on the part of the primary judge must result in a retrial, irrespective of the outcome of the other grounds of appeal. In Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577, Kirby and Crennan JJ said at [117]:
… An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. …
Ground 1
Ground 1 contends apprehended bias by the primary judge, resulting from his conduct on the final day of the four-day trial.
Where a question arises as to the independence or impartiality of a judge, the applicable principles are well established.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) the plurality of the High Court of Australia (“the High Court”) said (at [6]):
… 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.
(Footnotes omitted)
The application of the apprehension of bias principle involves a two-step analysis. First, the identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits, and second, the articulation of a logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]). Per Ebner, once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
In Webb v The Queen (1994) 181 CLR 41 at 74 (“Webb”) Deane J identified “at least four distinct, though sometimes overlaying, main categories”, which include disqualification by interest, whether pecuniary or otherwise, conduct, association, or extraneous information.
As to the second step and reasonableness of the asserted apprehension of bias, the following propositions can be gleaned from the authorities:
·the inquiry is objective (Johnson v Johnson (2000) 201 CLR 488 at [12] (“Johnson”) and does not require a conclusion about the judge’s actual state of mind (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 (“QYFM”) at [68]);
·apprehended bias is to be considered in the context of ordinary judicial practice (Johnson at [13]);
·all circumstances must be considered (Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371. See also, CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [20]);
·the criterion is concerned with “possibility (real and not remote), not probability” (Ebner at [7]);
·the apprehension is from the perspective of a fair-minded observer, meaning “it is the court’s view of the public’s view, not the court’s own view” that is determinative (Webb at 52);
·the qualities and attributes of the fair-minded observer must be taken into consideration.
As to the attributes and qualities of the fictional observer and ordinary judicial practice in Johnson the plurality of the High Court said at [13]:
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.” Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Footnotes omitted)
In QYFM at [46]–[49] the High Court provided the following recent and helpful analysis regarding the attributes of a fair-minded lay observer:
Here, as the parties properly recognised in argument, much depends on the characteristics to be attributed to the hypothetical fair-minded lay observer in applying that standard. The observer is to be placed in a contemporary setting. Uncritical attitudes of the past cannot be assumed to be those of the present.
Being “fair-minded”, the observer "is neither complacent nor unduly sensitive or suspicious". Yet the observer is cognisant of "human frailty” and is all too aware of the reality that the judge is human. The observer understands that "information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making".
Being “lay”, the observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge". Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard "the irrelevant, the immaterial and the prejudicial" and to discharge the judicial function uninfluenced by past professional relationships, "the public perception of the judiciary is not advanced by attributing to the ... observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case". This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.
(Footnotes omitted)
The first step in applying the test is to identify the matter or issue which might impact the judge’s decision.
In this case, the basis of the appellant’s assertion of apprehended bias is the conduct of the primary judge, particularly the making of orders immediately after conclusion of reply submissions of the respondent’s counsel, in identical terms to the draft minute provided by His Honour prior to commencement of final submissions.
As to the second step, senior counsel for the appellant contended the undue haste with which orders were made by the primary judge, demonstrated a lack of objective reflection about the persuasiveness of the submissions. Although the primary judge formally stated his mind was open to persuasion, his unorthodox approach in pronouncing orders so swiftly and without reasons, can only leave an uneasy impression that the primary judge predetermined the matter before submissions were made.
In support of his submissions, senior counsel relied upon the observations of the High Court (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne and Callinan JJ) in Johnson at [12], [13] and [14].
Turning now to the events leading to the making of the orders on the final day of the hearing.
After the conclusion of the appellant’s case the following exchange occurred (Transcript: p 231, line 20 – p 232 line 12) between the primary judge and both counsel:
HIS HONOUR: Gentlemen, I appreciate that you’re about to address me, and I will listen to your submissions. It may assist you, though, both, in terms of focus to understand the type of orders that the court might make. What I’m just contemplating, [Mr L] and Mr Livingstone – obviously, the court’s position is one where it hasn’t got a fixed or final view, and your submissions may well impact on the outcome that might be ordered, but if the court is persuaded that the greater financial contribution is that that’s been made by the applicant wife, and is of the view that the greater non-financial contribution has been made by the applicant wife, then it may come to the view that their property pool split maybe something in the order of around 60 per cent. If the court comes to that view, it may be that the transfer of the competing properties – and in that regard, what I mean is the transfer of to [Suburb E] to the husband, the transfer of [Suburb C] to the wife and the sale of [G Street]. When one looks at the other assets and financial contributions and the financial resources and the 75(2) – I think it’s (o) – other considerations in respect of how there have been dissipated funds – that the court may well come to the view that an order for then distribution of [G Street] fifty-fifty will reflect a 60/40 pool split, and that’s taking into account not as part of the net pool, but treating the superannuation as a financial resource.
Gentlemen, I’m minded, so as to concentrate your minds, to send to you the proposed possible orders that might be made from the orders that have been raised by the parties, so that the court can get the benefit of your input on those orders and your submissions, [Mr L], and your submissions, Mr Livingstone, to the extent that you want to contend for different outcomes, so that I can understand what they might be. Because the court would be minded, in the interests of the parties, to make orders today and reserve its written reasons, albeit that they are significantly advanced.
They will probably be published next week or, if necessary, the week after. But the court would be minded to make orders today after hearing submissions, reserve its written reasons and hear argument, if there is to be any argument on costs, and reserve its written reasons and determine that issue so that the parties don’t incur further costs and so as to bring finality to the dispute between the parties. Now, I am not going to ..... any of those aspects, but I’m raising them. Mr Livingstone, would it assist if the court identified the potential orders it might make?
MR LIVINGSTONE: I think that would assist greatly, your Honour. Thank you.
HIS HONOUR: [Mr L], would you be of the view that would assist?
MR WONG: Yes, your Honour.
Immediately after that exchange, counsel for the respondent (the applicant in the proceeding below) commenced his final submissions, followed by the submissions of the appellant’s counsel (the respondent in the hearing below) and thereafter reply submissions of the respondent’s counsel. The issues traversed by counsel for the appellant in his submissions before the primary judge are referred to below.
In support of his submissions in the appeal, Senior Counsel relied upon the observations of the High Court (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne and Callinan JJ) in Johnson at [12], [13]and [14] and of Kirby J at [55].
Senior counsel for the appellant submitted whilst it is permissible for a trial judge in exchanges with counsel, to express tentative views which reflect a certain tendency of mind and judges on that account alone are not to be taken to indicate prejudgement, that was not what occurred in this case.
Rather the expression of the primary judge’s view, after the conclusion of evidence, but prior to final submissions, was robust and could only be regarded by a fair-minded observer, as a firm expression of the manner in which the primary judge intended to exercise his discretion. The unorthodox practice of presenting counsel with proposed orders, which included a percentage division of the asset pool, immediately prior to counsels’ final submissions, cannot properly be characterised as an expression of tentative views or perceived as such by a fair minded observer, or be considered usual judicial practice.
Senior counsel submitted the primary judge formed a fixed view and drafted orders he planned to make before hearing submissions. He would not be shaken or dissuaded from the course of action by robust and detailed submissions by both counsel and particularly by submissions of the appellant. The primary judge did not pause, even for a moment to consider the proposed orders after submissions concluded and did not provide reasons for the decision before making the orders he did.
The conduct of the primary judge belied the very purpose of final submissions. These include to assist the court with applicable legal principles, the findings of fact to be made based on the evidence during the trial and how those findings should be applied to the law. The process of a fair trial requires not only the opportunity to make submissions, but for those submissions to be carefully considered prior to the making of orders.
Senior counsel submitted the impression left to the fair-minded observer was that there was no utility in hearing submissions, other than by way of lip service to requirements of procedural fairness, because the primary judge might not have had an impartial and unprejudiced view of the orders he would make, and by that stage, likely did not.
The apprehension of prejudgement was compounded by the failure to deliver ex tempore reasons before pronouncing the orders and the decision to produce written reasons at a later date. The primary judge did not alter or ameliorate what was said and done by him by any subsequent comment or statement in the written reasons
A more prudent course of action would have been to reserve judgement, so that a fair-minded observer would be confident, that prior to reaching his decision, the primary judge might have had an opportunity to genuinely reflect upon the submission of each counsel and thus exercise his discretion in a considered and informed manner.
Whilst accepting the process adopted by the primary judge was unusual, counsel for the respondent urged me to accept at face value, the comments of the primary judge that he did not have a fixed or final view and submissions might impact on the outcome that might be ordered.
Whilst I accept the sincerity of the comments of the primary judge and his commendable intention to provide finality to the parties, that is not the test to be applied. The test is the public’s view of the court process; what might be made of the comments by a reasonable observer imbued with the identified attributes, in circumstances where the making of identical orders immediately at the conclusion of submissions, might appear contradictory to those expressed sentiments?
Counsel for the respondent did not address the substantive complaints as articulated by senior counsel for the appellant, but rather contended the comments of the primary judge should be considered in the context of the conduct of the appellant’s counsel at the hearing below. In this case, the appellant’s counsel below did not complain about the now impugned conduct of the primary judge. Counsel for the respondent contended the appropriate time to raise objections of apprehended bias is at the hearing itself. Vakauta v Kelly (1989)167 CLR 568 at 572 – 574
Also relying on Vakauta at [7] and [19] senior counsel for the appellant contended that whilst the right to object on the grounds of apprehended bias can be waived by conduct at the hearing below, apprehensions of bias can arise in ways which cannot be objected to at the time and may lead to a conclusion there has been a denial of a fair trial when reviewed upon appeal.
In this case at the time the comments were made by the primary judge, the appellant’s counsel was entitled, indeed obliged to take His Honour’s word that his mind was not closed, albeit the approach taken by the primary judge to the exercise of his discretion, would cause some unease.
Turning now to the interaction between the primary judge and both counsel during submissions which occurred after the exchange recorded above.
The transcript demonstrates counsel for the respondent (the applicant in the hearing below) addressed the primary judge about the mechanics of a proposed restraint in the draft orders prior to embarking on his submission, which were primarily directed to three issues, credit findings, contributions and future needs factors (Transcript: p 233 – p 240).
Counsel for the appellant commenced his submissions about the restraint proposed by the draft orders prior to addressing the primary judge about substantive and contentious issues, some of which were raised by the primary judge (Transcript: p 243; line s3 – 29). These issues included disputed items on the balance sheet including potential addbacks, whether superannuation should be included in the asset pool, the monetary result of a percentage of the asset pool, credibility of and presentation of the appellant and respondent as witnesses, the quantum of funds paid by the respondent’s brother to assist with the purchase of a property, the extent of compliance with disclosure obligations, potential findings about contributions made by each party including the disposition of the sale proceeds of the Suburb K property, analysis of the proposed differential between the parties in monetary terms as opposed to percentage entitlements, whether uncrystallised capital gains tax liabilities should be included in the balance sheet, the percentage of the proceeds of sale of a property referred to as “[G Street]” which the appellant should receive to equate to the proposed division reflected in the draft order provided to both counsel (Transcript: p 243 – p 255).
The transcript demonstrates (Transcript: p 255) that during the final submissions of counsel for the respondent, the court adjourned at 1.05 pm and resumed a 2.07pm, whereupon counsel for the appellant continued his submissions (Transcript: p 255 – 264). Counsel for the respondent thereafter delivered his reply submissions (Transcript: p 264 – 267).
Immediately after the conclusion of the reply submissions, prior to making orders in identical terms to those proposed by him, the primary judge said (Transcript: p 267 line 38 – 45):
HIS HONOUR: Thank you, Mr Livingstone. The court has, as it identified earlier, prepared to a very advanced stage a draft reasons but is not in a position to deliver them today. The court is conscious of the fact that it will go on long service leave at the end of next week, does propose to try and deliver written reasons by the end of next week, but it’s in the interests of the parties to have the ongoing dispute between them brought to an end and the court is of the view, taking into account the relevant principles, that it’s in a position to make appropriate orders and reserve its written reasons, and considers that that is in the best interests of the parties.
The court then proposes to hear any argument if there is to be argument on costs so as to prevent further costs being incurred by the parties. In these circumstances, the court makes the following – the court declares that it is just and equitable and appropriate to alter the parties’ property interests under section 79 of the Family Law Act as identified in the following orders: …..
……Now, gentlemen, those orders will now be entered up on the Commonwealth Courts portal. Is there any application under section 117?
The transcript demonstrates during final submissions the primary judge engaged in extended dialogue and robust exchanges with both counsel, particularly when His Honour sought clarification about issues raised and points emphasised. He did not sit as inscrutable as The Sphinx, but rather actively appeared to consider and challenge submissions, prior to reaching the conclusion he did.
From the perspective of the fair-minded lay observer, in this particular case, the robust exchange and questioning by the primary judge of the issues eloquently put by counsel for the appellant, and the adjournment for an hour during submissions, would answer concerns that such a person might reasonably apprehend the primary judge might not bring an impartial mind to the task before him. The dialogue between both counsel and the primary judge demonstrates the primary judge engaged with submissions, raised his thoughts and possible concerns with counsel during submissions, and gave consideration to the submissions about a wide range of issues, particularly as submitted by counsel for the appellant. The engagement of the primary judge with each counsel was far from perfunctory.
The issue of the failure of the appellant’s counsel to object to the course of action adopted by the primary judge and thereby waive his right to assert apprehended bias on the part of the primary judge, is therefore otiose.
By way of cautious observation, the practice adopted by the primary judge should be discouraged. There was no impediment to the primary judge reserving his decision and making orders contemporaneously with the handing down of reasons. There was no apparent advantage to anyone, by the primary judge adopting the course he did.
This ground fails.
Prior to turning to the remaining grounds of appeal referred to in the Notice of Appeal, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
I now turn to the remaining grounds.
Ground 2
The trial judge failed to apply the relevant legal principles in the assessment of contributions and thus erred in law.
The gravamen of the appellant’s complaint under this ground, is that the primary judge failed to identify and make findings about the various contributions of the parties and by failing to do so, did not and could not, conduct a holistic assessment of contributions, as required by the authorities: See Dickons & Dickons (2012) 50 Fam LR 244 and Jabour & Jabour (2019) FLC 93-898.
There was no challenge to the statement of the law at [246] of the reasons, where the primary judge correctly identified the requirement to conduct a holistic assessment of all contributions collectively. Neither was there any challenge to the findings of the primary judge about capital contributions made by the parties, although there were clearly deficiencies in those findings, particularly about the quantum and timing of contributions.
At [263] of the reasons, the primary judge found the respondent contributed, via her father, in excess of $200,000 to the purchase of the Suburb C property, but did not precisely identify when the contribution occurred, other than a reference in the chronology at [7], which suggests the property was purchased in 1998. His Honour also found the respondent inherited the Suburb B property from her father, but did not quantify the then value of the property or when it was received. Similarly, the primary judge did not quantify the amount of inherited funds applied by the respondent towards the purchase of the G Street property in December 2010.
At [263] the primary judge found the Suburb E property was purchased with the joint equity of the parties in the Suburb C property and the deposit was paid jointly, with the respondent contributing $55,100 and the appellant contributing $9,400, but failed to identify the source of each party’s respective contributions to the deposit.
As to the appellant’s asserted capital contributions, in the context of asserted addbacks, at [255] the primary judge accepted partial proceeds of sale of the Suburb K property were used by the appellant for the benefit of the family but failed to identify the quantum and date of contribution. At [264] the primary judge rejected the appellant’s contention his parents had contributed $200,000 towards the acquisition of the G Street property.
Relying on the brief above findings, the primary judge concluded at [265] the respondent’s contributions amounted to 60% of the asset pool, which equates to $2,045,000 more than the appellant’s.
The reasons are silent about findings relevant to the appellant’s income contributions from 1999 onwards or his non-financial contributions, made either directly or indirectly, nor findings about his contributions to the family. Likewise, there are no such findings about the respondent’s contributions.
Senior counsel for the appellant contended, and I agree, the primary judge focused on and identified direct capital contributions made by the parties, and did not make findings about different types of contributions, as set out in s 79(4) of the Act, which he was required to do, and which would then enable a holistic assessment of all contributions as required by the authorities cited by the primary judge.
Counsel for the respondent properly conceded nowhere in the reasons did the primary judge make findings about contributions, other than direct capital contributions, except at [261] where His Honour found the respondent made greater financial and non-financial contributions. Despite comments to the contrary [261], the primary judge did not explain in his reasons, the basal facts underpinning that finding.
The failure to assess and make findings about non-financial and financial contributions, other than direct capital contributions, would preclude a holistic assessment of all contributions. The exercise of discretion, resulting in the orders ultimately made by the primary judge was not conducted according to law.
This ground succeeds.
Ground 3
The trial judge gave inadequate reasons for the determination and the reasoning process was defective
Under this ground the appellant complains the primary judge failed to explain his conclusion at [265] that the respondent made greater financial and non-financial contributions than the appellant, which warranted a finding her contributions equated to 60% of the asset pool.
Senior counsel for the appellant submitted the reasons do not specify what contributions were actually considered in reaching that conclusion, what weight was attributed to the respondent’s contributions, what was the quantum of the contributions and how were the contributions considered holistically within the matrix of all the differing contributions made by both the appellant and the respondent.
Senior counsel further submitted it was impossible to discern from the reasons what weight has been accorded to the appellant’s contributions including the partial sale proceeds of the Suburb K property, his income from both employment as an optometrist and at the wholesale markets, his efforts in improving property with his own hands and the weight accorded to the parties’ respective homemaking and parenting contributions.
The obligation of a primary judge is to provide adequate reasons, but adequacy depends on the circumstances of the case and brief reasons are not necessarily inadequate.
The principles as to what constitutes adequate reasons are well settled. In Fowles & Fowles (No 2) (2024) FLC 94 – 198, the Full Court at [163] and [164] said:
163.... In Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, the Full Court adopted the principles set out in Sun Alliance Insurance Ltd v Massoud (1989) VR 8, saying:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:—
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
164.In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the New South Wales Court of Appeal said:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “as sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
I agree with the above submissions of senior counsel for the appellant as to the deficiencies in the reasons. It is not possible to discern how the decision was arrived at, nor to establish whether or how the primary judge considered, evaluated and weighed the various arguments of the parties in order to transparently explain the conclusion reached. Further, it is not apparent how the primary judge moved from a qualitative evaluation of contributions to a quantitative reflection of such evaluation, to determine such a significant disparity between the parties was just and equitable. See Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] and [235].
This ground succeeds.
Ground 4
The decision to make a section 75(2) adjustment for the appellant’s expenditure of funds was not open to the court in light of the contribution assessment, and there are inadequate reasons for the decision to do so.
Under this ground the appellant complains the primary judge erred by making a further s 75(2) adjustment to the respondent of 2% of the property pool ($200,000), notwithstanding the contributions having been assessed so that the appellant would receive $4,094,156 and the respondent $6,141,325 of the assets available for distribution. That is particularly so, when considering the capacity of each party for employment and the living arrangements of the couple’s three children. The complaint also extends to adequacy of reasons.
At [ 267] – [278] of the reasons, the primary judge identified the relevant s 75(2) considerations and found that neither party at that time worked due to medical issues, but subject to surgery and recovery periods, both parties had capacity for employment. The couple’s two older daughters aged 20 and 19, apparently live in a week about arrangement and the youngest child, a son aged 16, lives with the appellant.
The error of the primary judge of making a further adjustment to the respondent was compounded by His Honour double counting two issues, which were taken into account both as addbacks when determining the asset pool and again under s 75(2) (o).
First, the disposition or sale of the market stalls for $30,000, of which the appellant received $20,000, which the primary judge found at [253] was not unreasonable and should not be notionally added back into the asset pool. Secondly, a withdrawal of $170,000 from a bank account made by the appellant was used in part for the benefit of the parties and should not be added back [254], despite no clear findings about how much was spent by the appellant and why.
Having made those findings, the reasons do not adequately or at all, explain why the two issues were taken into account under s 75(2)(o) and renders it impossible to discern how the decision to make a further s 75(2) adjustment in favour of the respondent, was arrived at.
This ground succeeds.
Ground 5
The exercise of discretion was so replete with failure to make relevant findings of facts and the failure to consider relevant matters, it has not been exercised according to law. To the extent the reviewing court cannot conclude with precision where error lies, the outcome was none the less plainly wrong and should be set aside.
Under this ground the appellant contends a substantial wrong has in fact occurred in the exercise of the discretion of the primary judge.
Senior counsel for the appellant contended that the appellant’s counsel below clearly explained to the primary judge (Transcript: p 249 line 40 – p251 line 34) why a discrepancy between the parties of $2,050,000 as a contribution assessment was not available to the court as a just and equitable outcome and why a holistic assessment of all contributions over a long marriage could rarely sustain such a discrepancy. I accept that submission.
Furthermore, the reasons do not address the fundamental and orthodox submissions made by the appellant’s counsel below. The statement at [261] of the reasons that the respondent made a greater financial contribution leads to the conclusion that the primary judge failed to consider the appellant’s contributions, other than direct capital contributions.
Senior counsel submitted the previous grounds relied upon identify precisely the errors of the primary judge. However, to the extent necessary, an award of 62% of the asset pool to the respondent, on the facts of this case, has caused a substantial wrong to the appellant, given that the marriage was over 20 years, there were three children, and both parties are capable of earning income to support themselves. The capital contributions of the parties from outside the marriage, as identified by the primary judge do not warrant such a large disparity and when assessed holistically, contributions of all different types from 1999 to the trial in 2024, could not support the differential and the decision was plainly wrong.
Counsel for the respondent submitted the orders made by the primary judge were just and equitable, albeit at the upper end of the range.
I prefer and accept the submissions of senior counsel for the appellant and agree the factual circumstances of the case, the absence of proper findings by the primary judge and the failure to holistically assess the respective contributions, render the orders made unjustifiable on the evidence.
This ground succeeds.
Disposition
In the event the appeal succeeded the appellant sought the matter be remitted for rehearing, whereas the respondent sought this court to re-exercise the discretion.
In determining whether to re-exercise the discretion or remit, it was said by the Full Court of the Family Court in Marcin & Marcin [2020] FamCAFC 85 at [161]:
[161]In the face of established error, an order for the re-hearing of the dispute has been described as an order of last resort (CDJ at 199), though it is an order commonly made when circumstances have or are likely to have changed between the original hearing and the disposition of the appeal (Allesch at 183). Since the appeal is by way of rehearing, whether the proven appealable error is remedied by the re-exercise of discretion by the Full Court or by the re-hearing of the proceedings at first instance, the parties must be given the opportunity to adduce further evidence as to current circumstances (Allesch at 183, 192). The Full Court is ill-equipped to receive fresh controversial evidence and so, in that event, there would ordinarily be little realistic option but to remit the proceedings for re-hearing.
Senior counsel for the appellant contended the appellant should not be precluded from adducing further evidence, should he wish to so do. Further, because of the nature of the identified errors of the primary judge, in particular the failure to make proper findings on the evidence, a fresh trial is required to enable evidence to be adduced and proper findings to be made prior to exercise of discretion.
Counsel for the respondent emphasised remitter was a course of last resort and not necessary on the facts of this matter.
I am persuaded by senior counsel for the appellant that remitter is the proper course to adopt. It is most unfortunate the parties will face a further hearing and inevitably incur further costs, however the parties must be afforded an opportunity to adduce further evidence as to current circumstances, if they so desire. I will therefore make an order for the matter to be remitted for rehearing by a judge other than the primary judge.
Costs
Both counsel agreed if the appeal succeeded on an error of law, then cost certificates should be granted for both the appeal and the remitted proceedings. If the appeal failed, the appellant should pay the respondent’s costs of the appeal. I agree with the submissions and because the appeal succeeded on an error of law, I will make the appropriate orders for costs certificates.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 4 July 2025
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