Date of Hearing: 3 September 2021 Date of Judgment: 6 October 2021
P6/2021
ORDER
1.The first respondent's application for an extension of time to file a notice of contention be refused.
2.The appeal be allowed with the first respondent to pay the costs of the appeal.
3. The orders of the Full Court of the Family Court of Australia made on 10 July 2020 be set aside and, in their place, there be orders that:
(a) the husband's appeal be allowed with the wife to pay the costs of the appeal, including any costs of the wife's cross-appeal;
(b) the orders made by Walters J on 10 February 2015 and 12 February 2018 be set aside; and
(c)the application for orders pursuant to s 79 of the Family Law Act 1975 (Cth) further or in addition to paragraphs 1, 5-13 and 15 of the orders made by Crisford J on 9 December 2011 be remitted to the Family Court of Western Australia for rehearing.
On appeal from the Family Court of Australia
Representation
S Penglis SC and F A Robertson for the appellant (instructed by DS Family Law)
P J Ward with A L Spencer for the first respondent (instructed by Williams + Hughes)
Fourth respondent (limited to written submissions)
No appearance for the second, third and fifth to eighth respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Charisteas v Charisteas
Family law – Property settlements – Apprehended bias – Where husband and wife separated – Where husband commenced proceedings in Family Court of Western Australia seeking orders for settlement of property – Where Family Court made orders for settlement of property – Where orders provided for early vesting of trust and distribution of trust fund and income – Where early vesting orders set aside on appeal but not remitted for redetermination – Where different judge of Family Court ("trial judge") made new and inconsistent orders for settlement of property – Where wife's barrister engaged in private communication with trial judge, including while case underway and while judgment reserved, without previous knowledge and consent of other parties – Where wife's barrister said communications did not concern substance of case – Whether fair‑minded lay observer might reasonably apprehend that trial judge might not bring impartial mind to decision – Whether Family Court retained power to make orders for settlement of property subject of early vesting orders.
Words and phrases – "apprehended bias", "bias", "disclosure", "fair-minded lay observer", "final orders", "hypothetical observer", "independence and impartiality", "informed consent", "judicial practice", "private communications", "professional conduct", "property settlement", "public confidence in the judicial system", "reasonable apprehension of bias".
KIEFEL CJ, GAGELER, KEANE, GORDON AND GLEESON JJ. The appellant ("the husband")…
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.
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Details
AGLC
Charisteas v Charisteas [2021] HCA 29
Case
[2021] HCA 29
Decision Date
CaseChat Overview and Summary
The case of *Charisteas v Charisteas* involved a dispute over property settlement orders made by the Family Court of Western Australia. The husband had initiated proceedings seeking property settlement, and initial orders were made, including provisions for the early vesting and distribution of a trust fund. These early vesting orders were later set aside on appeal, but the matter was not remitted for redetermination. Subsequently, a different judge of the Family Court made new and inconsistent property settlement orders. A key issue arose when the wife's barrister engaged in private communications with this trial judge, including during the proceedings and while judgment was reserved, without the knowledge or consent of the other parties. The husband contended that these private communications gave rise to a reasonable apprehension of bias.
The High Court of Australia was required to determine two primary legal issues. Firstly, whether a fair-minded lay observer, possessed of all the relevant facts, might reasonably apprehend that the trial judge might not bring an impartial mind to the decision, thereby establishing a case of apprehended bias. Secondly, the Court considered whether the Family Court retained the power to make orders concerning the property that had been the subject of the earlier, now set-aside, early vesting orders.
The High Court allowed the appeal, finding that the private communications between the wife's barrister and the trial judge created a reasonable apprehension of bias. The Court applied the established test for apprehended bias, which requires considering whether a fair-minded lay observer would perceive a lack of impartiality. The Court reasoned that such communications, particularly when conducted without the consent of all parties and without disclosure, undermine public confidence in the judicial system and the appearance of independence and impartiality. Consequently, the orders made by the Full Court of the Family Court of Australia on 10 July 2020 were set aside.
In place of the Full Court's orders, the High Court ordered that the husband's appeal to the Full Court be allowed, with the wife to pay the costs of that appeal, including any costs of her cross-appeal. Furthermore, the orders made by Walters J on 10 February 2015 and 12 February 2018 were set aside. The application for orders pursuant to s 79 of the *Family Law Act 1975* (Cth) was remitted to the Family Court of Western Australia for a rehearing.
Orders
Orders of the court
1. The first respondent's application for an extension of time to file a notice of contention be refused.
2. The appeal be allowed with the first respondent to pay the costs of the appeal.
3. The orders of the Full Court of the Family Court of Australia made on 10 July 2020 be set aside and, in their place, there be orders that:
(a) the husband's appeal be allowed with the wife to pay the costs of the appeal, including any costs of the wife's cross-appeal;
(b) the orders made by Walters J on 10 February 2015 and 12 February 2018 be set aside; and
(c) the application for orders pursuant to s 79 of the Family Law Act 1975 (Cth) further or in addition to paragraphs 1, 5-13 and 15 of the orders made by Crisford J on 9 December 2011 be remitted to the Family Court of Western Australia for rehearing.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, GAGELER, KEANE, GORDON AND GLEESON JJ
(dissent)
The Family Court of Western Australia should list the matter for rehearing to address the Early Vesting Orders. The parties to the litigation, as well as that Court, must take steps to ensure that this litigation is brought to an end without further delay.Conclusion and orders For those reasons, the following orders should be made:1.The first respondent's application for an extension of time to file a notice of contention be refused.2.The appeal be allowed with the first respondent to pay the costs of the appeal.3.The orders of the Full Court of the Family Court of Australia made on 10 July 2020 be set aside and, in their place, there be orders that:(a)the husband's appeal be allowed with the wife to pay the costs of the appeal, including any costs of the wife's cross‑appeal;(b)the orders made by Walters J on 10 February 2015 and 12 February 2018 be set aside; and(c)the application for orders pursuant to s 79 of the Family Law Act 1975 (Cth) further or in addition to paragraphs 1, 5-13 and 15 of the orders made by Crisford J on 9 December 2011 be remitted to the Family Court of Western Australia for rehearing.