Aritza & Aritza

Case [2025] FedCFamC1A 108

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 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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AGLC
Aritza & Aritza [2025] FedCFamC1A 108
Case
[2025] FedCFamC1A 108
Decision Date

CaseChat Overview and Summary

This appeal involves a property dispute between Mr Aritza and Ms Aritza. The case was heard in the Federal Circuit and Family Court of Australia, Appellate Division, presided over by Williams J. Mr Aritza sought to appeal against the primary judge's decision on the grounds of apprehended bias, defective reasoning, inadequate reasons, and incorrect exercise of discretion.

The court was required to consider whether the primary judge had conducted themselves in a manner that gave rise to apprehension of bias, whether the reasoning employed was defective, whether the reasons provided were adequate, and if the discretion was exercised correctly. The court assessed these issues based on the conduct of the primary judge and the reasoning provided in the original decision.

The court found that the primary judge's conduct did give rise to an apprehension of bias, as they had foreshadowed orders prior to the final submissions of counsel. Additionally, the court determined that the primary judge employed a defective reasoning process and failed to give adequate reasons for their decision. The court also found that the primary judge exercised their discretion incorrectly in the context of the property dispute. Consequently, the appeal was allowed, and the matter was remitted for rehearing before a different judge. The court also granted costs certificates to both parties in relation to the appeal and the new trial.

Orders

Orders of the court

NAA 360 of 2024

SYC 4856 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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