Charisteas v Charisteas

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.