BETWEEN: MRS CHARISTEAS
Applicant
AND
MR CHARISTEAS
First Respondent
AND
LEWIS BARTON AND ANGELINA CHARISTEAS (As Executors of the Estate of J CHARISTEAS)
Second Respondents
AND
XYZ PTY LTD
Third Respondent
AND
LEWIS BARTON
Fourth Respondent
AND
ANGELINA CHARISTEAS
Fifth Respondent
AND
E CHARISTEAS
Sixth Respondent
AND
MS SOLANO
Seventh Respondent
AND
MS MAGNOLI
Eighth Respondent

Catchwords:

FAMILY LAW – Practice and procedure – Application for judge to be disqualified for apprehended bias – Waiver – Application of principles in Vakauta v Kelly (1989) 167 CLR 568 – Delay in making application for disqualification of judge for apprehended bias – Where application received extremely late and with minimal warning – Where submissions fail to differentiate between question of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question or questions the judge is required to decide (on the one hand) and reasonable apprehension that the judge will decide the case adversely to a party (on the other) – Where no nexus demonstrated between the matters relied on as indicators of bias or pre-judgment (on the one hand) and the resolution of the question or questions the judge is required to decide (on the other) – Where thrust of application appears to be apprehension that judicial officer will decide the case adversely to one party

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant : Ms G. Anderson
First Respondent : Mr P. Dowding SC
Second Respondents : Mr S. Penglis
Third Respondent : Mr S. Penglis
Fourth Respondent : Mr S. Penglis
Fifth Respondent : Mr S. Penglis
Sixth Respondent : Self Represented Litigant
Seventh Respondent : Self Represented Litigant
Eighth Respondent : Self Represented Litigant

Solicitors:

Applicant : DCH Legal Group
First Respondent : Slater Gordon
Second Respondents : West End Legal
Third Respondent : West End Legal
Fourth Respondent : West End Legal
Fifth Respondent : West End Legal
Sixth Respondent : Self Represented Litigant
Seventh Respondent : Self Represented Litigant
Eighth Respondent : Self Represented Litigant

Case(s) referred to in judgment(s):

AG and Ors & VC and Anor [2013] FamCAFC 60
Anderson v National Australia Bank [2007] VSCA 172
Batey-Elton & Elton [2010] FamCAFC 79
Budd v Kambah Tea Tree Plantations Pty Ltd [2001] NSWCA 180
Byron v Southern Star Group Pty Ltd t/a KGC Magnetic Tapes (1995) 13 ACLC 301
Charisteas & Charisteas [2011] FCWA 89
Charisteas & Charisteas [2012] FCWA 1
Charisteas & Charisteas [2015] FCWA 15
Crossman v Sheahan [2016] NSWCA 200
DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Giannarelli v Wraith (1988)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CHARISTEAS and CHARISTEAS

Details

AGLC: CHARISTEAS and CHARISTEAS [2016] FCWA 106
Case: [2016] FCWA 106
Decision Date: 14 NOVEMBER 2016

CaseChat Overview and Summary

The case of Charisteas and Charisteas was heard in the Family Court of Australia, where the central dispute revolved around a claim for the disqualification of a judge due to alleged apprehended bias. The application for disqualification was made by the husband, who argued that the judge had a predisposition towards him and had shown bias in previous proceedings. The wife contested the application, asserting that the judge's conduct was fair and impartial.

The legal issues before the court were twofold: firstly, whether the judge had indeed displayed any form of bias that could warrant disqualification, and secondly, whether any perceived bias was of such a nature that it would prevent a fair trial. The court had to carefully assess the evidence presented and apply the principles established in previous case law regarding judicial impartiality and the apprehension of bias.

The court found that the judge had not demonstrated any bias that would necessitate disqualification. It was determined that the judge's comments and decisions were based on the evidence presented and the applicable law, without any personal prejudice. The court also considered the concept of waiver, as the husband had not previously raised concerns about the judge's impartiality. Consequently, the application for disqualification was dismissed. The court emphasised the importance of maintaining public confidence in the judicial system, and the husband's application was seen as an abuse of process.

Orders