Finch & Finch - [2020] FamCAFC 60

FAMILY COURT OF AUSTRALIA

FINCH & FINCH

[2020] FamCAFC 60

FAMILY LAW – APPEAL – PROPERTY – Whether the wife was denied procedural fairness – Excessive judicial intervention – Where judicial interventions were unwarranted – Where the primary judge expressed a “preliminary view” – Where counsel were unable to properly conduct cross-examination – Procedural unfairness – Appeal allowed – Matter remitted – Costs certificates ordered.

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Application dismissed – Where both parties sought costs certificates if the appeal succeeded – Costs certificates granted to both parties for the appeal and the rehearing of the matter.

Federal Proceedings (Costs) Act1981 (Cth) ss 6, 8 and 9

Galea v Galea (1990) 19 NSWLR 263
Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85
Jones v National Coal Board [1957] 2 QB 55; [1957] EWCA Civ 3
Jorgensen v Fair Work Ombudsman (2019) 371 ALR 426; [2019] FCAFC 113
Michel v The Queen [2010] 1 WLR 879; [2009] UKPC 41
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3

APPELLANT:

Ms Finch

RESPONDENT:

Mr Finch

FILE NUMBER:

BRC

11625

2015

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

20 March 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ryan, Aldridge & Tree JJ

HEARING DATE:

5 February 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

16 April 2019

LOWER COURT MNC:

[2019] FCCA 68

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Wilson QC

SOLICITOR FOR THE APPELLANT:

Armfield O’Brien Law

COUNSEL FOR THE RESPONDENT:

Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT:

Ritt Law

Orders

Appeal NOA 43 of 2019 be allowed.
The Application in an Appeal filed 28 January 2020 be dismissed.
The orders made by the primary judge on 16 April 2019 be set aside.
The proceedings be remitted to the Federal Circuit Court for rehearing by a judge other than the primary judge.
The Court grants to the appellant a costs certificate pursuant to 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.
The Court grants to the respondent a costs certificate pursuant to 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.
The Court grants to the parties costs certificates pursuant to the s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the rehearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Finch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 43 of 2019
File Number: BRC 11625 of 2015

Ms Finch

Appellant

And

Mr Finch

Respondent

REASONS FOR JUDGMENT

Introduction

On 16 April 2019, the primary judge pronounced final property settlement orders, pursuant to which the parties’ net property pool was divided equally between them. That division was effected by Mr Finch (“the husband”) retaining the former matrimonial home, and paying Ms Finch (“the wife”) $228,697.50. That figure accommodated a superannuation splitting order made in favour of the husband.
From those orders the wife appeals, which appeal is resisted by the husband. For the reasons that follow, the appeal must be allowed.

Background

The husband is currently 56 years old, and the wife is 58. The parties commenced cohabitation in 1987, and married in 1991. There was one child born to the relationship, who is now 24 years of age.
The parties separated in 2013. Initially they lived separately under the one roof for approximately 18 months, until the husband moved out of the former matrimonial home. The wife still remained living in that home at the time of trial.
The wife is employed both as a health care worker and a public servant, and the husband owns and operates a business.

The Trial Generally

The trial before the primary judge was conducted over three days. Both parties were represented by solicitors and counsel.
On the day that it commenced, some hours of what would otherwise have been hearing time, were spent in negotiations between the parties. Although settlement was not achieved, the issues in dispute were able to be narrowed. The hearing commenced at 12.50 pm, and later that afternoon evidence was led from the husband’s accountant, who was then cross-examined by counsel for the wife. A little later, the husband commenced giving his evidence, and remained under cross-examination at the conclusion of the first day of trial.
Ultimately, none of the husband’s other witnesses were required for cross‑examination by the wife, and she commenced giving her evidence at about midway through the second day of the trial. As it eventuated, she was the only witness in her case required for cross-examination, and therefore at the conclusion of her evidence on the second day of the hearing, the evidence in both parties’ cases had closed. Submissions then commenced, but were unable to then be finished, and ultimately concluded several months later on Friday, 1 June 2018.

The Appeal

In her Amended Notice of Appeal filed 17 October 2019, the wife advances only the following two grounds:
1.The [primary] judge failed to afford the appellant procedural fairness, having regard to:
a.The excessive interjections during the cross examination of the husband;
b.The unnecessary admonition of the wife during her cross examination;
c.The assistance given to counsel for the husband during his cross examination of the wife;
d.Her [Honour’s] finding that the wife was dishonest and misled the Court;
e.Her [Honour’s] demeanour towards the wife and her counsel during the trial;
2.The [primary] judge erred in law in refusing to include tax credits in the pool of assets available for adjustment between the parties.
(As per the original)

Ground 1: The procedural unfairness challenge generally

As has been seen, Ground 1 of the Amended Notice of Appeal makes a general claim of procedural unfairness, which is particularised by reference to five matters. However, as ultimately advanced, it was the allegedly excessive judicial intervention during the course of the hearing generally, which was emphasised by Queen’s Counsel for the wife. That being the gravamen of this ground of appeal, it is convenient to deal with it in the same way as it was argued by the wife.
Correctly, the wife accepted that Ground 1 needed to be disposed of prior to any consideration of the second ground of appeal, in that it is generally inappropriate for an intermediate court of appeal, if the matter is to be remitted, to otherwise go on to determine contentious matters in the course of the appeal.

Was the judicial intervention excessive?

Overview and general context

The wife contended that a consideration of the number, frequency and duration of the primary judge’s interventions, together with the nature of the exchanges contained within them (including the tone of the primary judge’s voice from time to time) demonstrates that, properly contextualised, the interventions were excessive.
For his part, the husband contended, in substance, that such interventions as the primary judge engaged in were not excessive, given what he says was the inept presentation of the wife’s case, her unreasonable refusal to make appropriate concessions, and the structuring of her argument by reference to untenable contentions of both fact and law. The husband says that the primary judge expressed legitimate frustration from time to time, in an effort to redirect the litigation to issues which would likely be truly determinative of it. To the extent that her Honour’s frustration may have on occasion found vent in the form of an altered tone of voice, he says that it was not an impermissible demonstration, but rather her Honour seeking to properly control the conduct of the proceedings.

Legal principles

In Galea v Galea (1990) 19 NSWLR 263 at 281–282 (“Galea”), Kirby A-CJ (with whom Meagher JA agreed) summarised the relevant principles in relation to excessive judicial interference, as follows:
1.The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA).
2.A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane C Ltd v Ministry of Transport.
3.Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and “into the perils of self-persuasion”: see Sir Robert Megarry, “Temptations of the Bench” (1978) 16 Alta L Rev 406 at 409; see also U Gautier, “Judicial Discretion to Intervene in the Course of the Trial” (1980) 23 Crim LQ 88 at 95-96 and cases there cited.
4.The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see Inthe Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626; see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90 WN (Pt 1) (NSW) 427; [1970] 1 NSWR 654.
5.It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel’s brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117).
6.The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v The Queen (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F per Gleeson CJ.
This statement of principle is widely accepted: see Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 (“Royal Guardian”); Huda & Huda and Laham (2018) FLC 93-837 and Jorgensen v Fair Work Ombudsman (2019) 371 ALR 426 (“Jorgensen”).
Further, the following principles may be distilled from the previous authorities in relation to excessive judicial intervention:
(a)Although it may overlap with ostensible bias, excessive judicial intervention leading to a lack of procedural fairness is a separate basis of appealable challenge (RPS v The Queen (2000) 199 CLR 620 at 625; Royal Guardian at [35]–[39] and Jorgensen at [95]);
(b)A failure to assert a want of procedural fairness at the trial does not preclude it being first raised on appeal (Royal Guardian at [30]–[33] and [255]);
(c)The evaluation of whether interventions are excessive involves an assessment and balancing of the appropriate role and limits of judicial engagement and management, with the need for the appearance of detachment, and the provision of fairness (Royal Guardian at [18]; Royal Guardian at [171] citing Michel v The Queen [2010] 1 WLR 879 (“Michel”) and Jorgensen at [102]);
(d)Inept representation may justify greater judicial intervention, in order to ensure the proper use of court resources, and avoid delay or unnecessary prolongation of the hearing (Royal Guardian at [38]);
(e)Nonetheless the judge must not assume the role of advocate, or be unduly intimidatory, interventionist or directionist, nor unduly press so-called “preliminary views” (Royal Guardian at [220]; Royal Guardian at [17] citing Michel and Royal Guardian at [163] citing Denning LJ in Jones v National Coal Board [1957] 2 QB 55); and
(f)The number, frequency and duration of the judicial interventions will be relevant, as will their nature and context (including the stage of the trial), content and manner of delivery (including tone of voice) (Royal Guardian at [164] citing Galea).

The number, frequency and duration of the interventions

There were numerous interventions by the primary judge during the course of the hearing, many of which are uncontentious, and were plainly appropriate attempts by her Honour to quickly distil the issues in dispute, and to master the substratum of facts which underpinned the trial.
After a somewhat rocky start, the trial proceeded uneventfully for a period of time. Indeed, we do not understand there to be any criticism of her Honour’s interventions in relation to the evidence of the first witness, the husband’s accountant. Rather, it was only during the cross-examination of the husband that the primary judge’s impugned interventions commenced.
The first impugned intervention occurred at the very commencement of the cross-examination of the husband, as follows:
MR MOULD: Thank you, your Honour.
Sir, your parents gifted you two acres at [Property A] to both you and [the wife] on 29 August ’94?---Correct.
HER HONOUR: Just rephrase that.
MR MOULD: Your parents gifted you and my client, [the wife], two acres at [property A] on 29 August 1994?---Correct.
HER HONOUR: Is it contested? I don’t want this to be done by slippery questions. Is it – there was a gift made first. Who was it gifted to? I think should be done like that. I don’t know. I think you’re trying to overturn the presumption, aren’t you?
MR MOULD: Well, perhaps.
HER HONOUR: That’s right. So let’s one bullet at a time. Was there a gift? Who gave it to you? And then you can ask whatever you want to ask about that.
(Transcript 12 March 2018, p.27 line 40 to p.28 line 11)
We shall make some observations about the content of that intervention, and others, when considering their nature, but for present purposes, we simply note that her Honour’s criticism of counsel’s questions was unwarranted. However, it did very much set the scene for the interventions which ensued.
At the hearing of the appeal, the wife impugned a further 44 interventions by the primary judge during the course of counsel’s cross-examination of the husband, although there were many more, albeit not relied upon by the wife. Some of the impugned interventions were, by reference to the time log on the audio recording of the proceedings, as brief as two seconds. The longest was slightly in excess of four minutes. On average, the interventions lasted a little longer than 47 seconds; in total they occupied in excess of 35 minutes. To put that in some context, the cross-examination occupied one hour and 59 minutes; in consequence, the impugned interventions occupied just a little under 30 per cent of the duration of cross-examination. However, we should again note, that if one were to include non-impugned interventions (including the primary judge’s own questioning of the husband from time to time) the total duration of the interventions would be much greater; for instance, at the end of the first day, although the husband was then in the witness box under cross-examination, there was almost 25 minutes during which counsel was not in fact cross-examining, but rather there was a dialogue conducted between the primary judge and both counsel before the court adjourned for the day.
Further, as we have just observed, on occasion her Honour interrupted counsel’s cross-examination of the husband to ask a series of questions of the husband herself, those occasions sometimes spanning the better part of a page of the transcript.
Factoring those sorts of matters into account, we are confident that in fact, counsel was precluded from undertaking cross-examination for at least an hour of the nearly two hours it notionally occupied.
It is informative that, if one deducts the 35 minutes which the impugned interventions took from the length of the cross-examination of one hour and 59 minutes, there was a total of no more than 84 minutes of cross-examination, but it was interrupted by impugned interventions 45 times, thereby meaning that counsel, on average, was interrupted nearly every two minutes. Given there were many benign interventions, the reality is that the interval was, on average, much less. This frequency of intervention is borne out by a review of the transcript; the longest period counsel was able to proceed without interruption saw him ask 15 questions; often, the number of questions was much less.
The number, frequency and duration of the primary judge’s interventions during the husband’s evidence are of serious concern. Counsel for the wife was significantly impeded in conducting his cross-examination, even, as we have noted, from his very first question.

Turning to the primary judge’s interventions during the wife’s evidence, they were quite different to those during the husband’s cross-examination. Not once were her Honour’s interjections directed towards counsel for the husband, but they were invariably directed towards the wife herself. Some were relatively benign, but others were not. Moreover, although they were not as frequent as the interventions during the course of the husband’s evidence, they were still a consistent and regular feature, and on occasion, comprised relatively lengthy periods of the primary judge herself questioning the wife. Again, their number, frequency and duration are troubling.

The nature of the interventions

Context

Most of the primary judge’s impugned interventions, both during the course of the wife’s counsel’s cross-examination of the husband, and the wife’s own cross examination, were against the background of earlier failed attempts to settle the trial. Her Honour’s interventions were plainly, on some occasions, an attempt to see whether the matter might yet be coerced to settle, if contentious issues could be resolved by the expression of a “preliminary view” or other judicial engagement.
We should also note that the primary judge was mindful that much of the first day of the two days allocated to the hearing had been spent in negotiation, and hence her Honour was aware that some economy was needed if the matter was not to run over, and therefore cross-examination needed to be focussed upon significant issues, rather than peripheral matters. No criticism could be, or was, made of those laudable motives.
However, it cannot be overlooked that, as it transpired, only three witnesses were cross-examined, and it was only the husband and the wife whose evidence was seriously challenged during cross-examination. The primary judge’s interventions were therefore in relation to the two most significant witnesses in the case, and spanned virtually the entirety of their evidence.

Content

Before us, Queen’s Counsel for the wife focussed upon the specific content of the interventions. As argued, there were at least four species of content which was said to be objectionable, although they frequently overlapped. Firstly, on occasion, the interventions were simply unwarranted, and indeed, demonstrated fundamental error on the part of the primary judge. Secondly, there were interventions which were unduly personalised. Thirdly, on occasions, her Honour “entered into the arena”. Fourthly, there were interventions relating to the expression of a “preliminary view” which the primary judge initially expressed forcefully, but thereafter progressively resiled from, to the point where ultimately, in the judgment, she did not adhere to it. It is convenient to consider the content of the interventions by reference to those themes.
Turning to unwarranted interventions, the first, and one of the most obvious, was that made at the commencement of the cross-examination of the husband which we have already set out at [19] of these reasons. There was simply no justification to require the opening question to be rephrased, nor anything “slippery” about the subsequent question (Transcript 12 March 2018, p.28 line 4). There were, however, quite a number of subsequent interventions which were also unwarranted, although it is unnecessary to recite them all. Two further illustrations will suffice.
The first is at page 29 of the transcript, where her Honour intervened during the course of cross-examination of the husband again (noting that in these reasons, we shall emphasise relevant parts of the extracts by italicising them):
[MR MOULD]: You were aware that your parents had entered into a contract with [Mr P], or [Mr P], the neighbour, for the sale of the acreage you eventually were gifted?---I don’t – your information is not right. So the answer to that question is no.
HER HONOUR: Don’t try and get this witness to answer legal questions. Okay. Get the facts. Is this a place where you lived and grew up on, is it?---Yes.
Okay. And at some point the gift that your parents made, that was from what they owned?---Correct.‑‑‑Correct.
Okay?‑‑‑The road severed the property, and the smaller portion of the property was the two acres, and my parents lived on 34 acres.
Right?‑‑‑So it was the 34 acres where – was where the family home was.
Right. And what sort of farm was it, or was it a farm?---It was a hobby farm. You know, we had house cows, chickens, goats, sheep.
And did they make an income from that?---No.
So they had other jobs as well?---Yes. My father had many occupations from driving taxis, working in small type factories as a labourer. He – he – he had a business which was a – a food processing business, but that wasn’t – that wasn’t on the property. That was [in Region Q].
Okay. And that’s where you grew up as a little boy?---As a young boy I grew up [in Region Q] till age 14.
Right?---And then we moved to this acreage property at [Town Z], and I lived there from - - -
From aged 14?---From aged 14.
Okay. And you went to school somewhere in the area?---I went to school at [Town CC].
Okay?---Or at [Suburb BB], sorry, but - - -
Okay. All right. Thanks, Mr Mould.
MR MOULD: Thank you, your Honour.
(Transcript 12 March 2018, p.29 lines 3–43)
The wife’s counsel then asked some further questions before the following exchange occurred at page 30 of the transcript:
[MR MOULD]: No. So can I show you your affidavit?---Do you want me to explain what he’s trying to get at?
No. I will show you your affidavit.
HER HONOUR: No, no. He’s going to ask you questions. Let’s just see what they are?---Okay.
Painful as it might be.
(Transcript 12 March 2018, p.30 lines 1–9)
Several points need to be made in relation to these passages. The first question, as to the gift of the land – which as often was the case, was not objected to by counsel for the husband, yet was nonetheless effectively objected to by the primary judge – was perfectly permissible, and her Honour’s intervention was wholly unwarranted. Indeed, apart from her Honour almost immediately thereafter asking virtually the same question that she had objected to counsel asking, even more curiously, a little later at page 38 of the transcript, the primary judge herself asked the witness a plainly legal question, namely “[y]ou and your partner are joint[ly] and severally liable on the mortgage?” (Transcript 12 March 2018, p.38 lines 9–10). Next, the subsequent questioning of the witness by the primary judge dealt with wholly irrelevant matters; given her Honour’s clear agitation when counsel for the wife dealt with peripheral matters, the primary judge’s line of questions, and the length of time that her Honour herself devoted to them, is puzzling. Thirdly, the gratuitous observation “[p]ainful as it might be” was quite unwarranted (Transcript 12 March 2018, p.30 line 9).
On the following day, cross-examination of the husband resumed. Counsel for the wife started by showing the husband some photographs, apparently of excavation spoil placed on the acreage on which the former matrimonial home was situated. There was an objection based upon a lack of clarity as to whether the photograph was said to depict what was presently on site, during the course of which, the primary judge inquired of counsel about the point of this line of questioning. In the subsequent exchange with counsel for the wife, the following appears:
MR MOULD: Well, if my client is to take the property, then she will – either the husband will have to remove the debris of some significance or she will have to pay for it to be removed.
HER HONOUR: All right. Well, that’s the question you ask.
MR MOULD: Yes. So the debris on the - - -
HER HONOUR: What is the debris? I mean I’m thinking trees that are down and, you know, what are you talking about? What is the debris? Am I looking at storm damage, cyclone damage? What’s the debris? This is all a bit – from my perspective, I haven’t seen anything. What is the debris? What – do you mean machinery, plant and equipment, or what are you talking about?
MR MOULD: No, no. It’s earthworks, landscaping supplies - - -
HER HONOUR: Landscaping supplies?
MR MOULD: Well, essentially the trees, the dirt has been removed from another property and put onto this property, rocks.
HER HONOUR: For goodness sake, how long is this going to take? Which picture?
MR MOULD: Perhaps if I put it this way. Sir, you accept, don’t you, that there remains as of today debris on the property, that you’ve disposed on the property?
HER HONOUR: What does that mean? “Disposed”?
MR MOULD: That you’ve put on the property yourself.
HER HONOUR: Well, I think you need to describe – you have to be more forensic. Is there a photograph you want him to look at that is – represents what you’re talking about?
MR MOULD: The first photograph – the first page there. The crate at the top part of it, the crate - - -
(Transcript 13 March 2018, p.54 line 31 to p.55 line 19)
We cite this example, because having needlessly criticised counsel for the wife for cross-examining by reference to a photograph, and then, in effect, dictating the question that counsel should be asking, her Honour immediately cut counsel’s question off – again, quite without warrant, and not in response to any objection – before then suggesting that in order “to be more forensic,” counsel should show the witness a photograph (Transcript 13 March 2018, p.55 line 14). Of course, this was precisely what he had been doing when the primary judge demanded he desist. In reality, counsel for the wife was being hectored by the primary judge.
Also, whilst discussing this theme, we should observe that some of the primary judge’s interventions suggest that her Honour was proceeding on an erroneous understanding of significant matters. For instance:
HER HONOUR: Okay. It’s an objection to your question as being misleading and wrong.
MR MOULD: He had – I agree he has direct debits. My point is that he - - -
HER HONOUR: No, but you keep saying there are no records of any payment. You have to be so careful. Are you accusing someone of fraud?
MR MOULD: No, certainly not.
HER HONOUR: Well, so far you’ve done – Mr Mould - - -
MR MOULD: I will make it clear - - -
HER HONOUR: - - - ask your question, then get it over and done with.
MR MOULD: You have – you have regular direct debits to pay - - -
HER HONOUR: But nothing in your question needs – if it is anything that’s not admitted you can’t ask it and if you’re going to quote bank statements when Mr Linklater-Steele tells me that that’s not what’s said, I won’t allow you to.
(Transcript 13 March 2018, p.80 line 37 to p.81 line 9)
The suggestion made by the primary judge that “if it is anything that’s not admitted you can’t ask it” is simply wrong. Thus, not only was the primary judge’s intervention unwarranted, it was imposing an impermissible restraint upon wife’s counsel’s cross-examination.
These are not isolated examples of unwarranted interventions by the primary judge, others of which can be found at: Transcript 12 March 2018, p.44 lines 15–25; Transcript 13 March 2018, p.56 lines 13–20; Transcript 13 March 2018, p.58 lines 12–15; Transcript 13 March 2018, p.68 lines 26–33; Transcript 13 March 2018, p.71 lines 13–44; Transcript 13 March 2018, p.74 line 38; Transcript 13 March 2018, p.76 lines 13–14; Transcript 13 March 2018, p.78 lines 9–13; Transcript 13 March 2018, p.79 lines 20–35 and Transcript 13 March 2018, p.120 line 44–46.
The second theme of the content of the interventions, is the asserted unduly personalised way in which they were made. The high point of this criticism is the following passage during the husband’s cross-examination by counsel for the wife:
HER HONOUR: Okay. So withdraw what you have said to this witness because it’s misleading and wrong, isn’t it?
MR MOULD: No, I was suggesting that - - -
HER HONOUR: You said to him – I’m sorry, that do you recognise that that’s your account.
MR MOULD: Yes.
HER HONOUR: It’s not this man’s account, is it?
MR MOULD: Yes.
HER HONOUR: Yes, it is? Okay. Doesn’t – who swore the affidavit?
MR MOULD: [Mr G].
HER HONOUR: Okay. Then how do you know that you’re putting – you’re putting something that’s truthful. How do you know that that’s this client’s account and not as per order – paragraph 8, “I paid [the husband] the sum of 7000. Annexed hereto is a copy of the relevant transaction showing the transfer to [the husband].” How do you know that this is this client’s bank statement.
MR MOULD: Your Honour, I will withdraw that.
HER HONOUR: It’s – no – it’s not, is it?
MR MOULD: I – I accept that now, yes.
HER HONOUR: It was wrong.
MR MOULD: Yes, it was. Sorry.
HER HONOUR: You’re misleading the witness.
MR MOULD: You ‑ ‑ ‑?‑‑‑Sorry, please just ask me ‑ ‑ ‑
You sold your - - -
HER HONOUR: I think an apology to the witness would be most courteous in the circumstances.
MR MOULD: Yes, I do apologise.
HER HONOUR: “Sorry, [Mr Finch], I’ve mislead you there. I’ve been confused,” is what most counsel would say.
MR MOULD: Yes, I do apologise. In relation to this [motor bike] off road motorbike, you gave that – you had that motorbike during the relationship, didn’t you?---Yes.
And you gave it to a [Mr T] to sell for $5200?---I gave it to him to sell and that’s how much he sold it for.
Now he – you gave him $300 for him to do so?---Mmm.
And you paid for his out-of-pocket expenses of some $700?---Yes.
Now he put into your account the sum of $4200, didn’t he?---Again, I – I don’t recall, but I will – if that’s what the statement shows.
HER HONOUR: Right. Well, I want you to be absolutely sure. Don’t go misleading this witness again, leading him down the path to error.
(Transcript 13 March 2018, p.69 line 1 to p.70 line 15)
Queen’s Counsel for the wife correctly characterised that exchange as the primary judge humiliating counsel. It is significant that it occurred during his cross‑examination of a crucial witness.
Another instance akin to that, is as follows:
HER HONOUR: Okay. So can I just remind you that your client isn’t a lawyer?
MR MOULD: Yes, your Honour.
HER HONOUR: So I don’t want you to just put everything your client says because it will be utterly time wasting. You’ve got to sift and point out to your client: well it’s a mortgage; you’re jointly and severally liable; I can’t put up that it’s 40 per cent. I hope the other arguments are not based just on what your client has told you because you’re more than an advocate; you’re an officer of the court.
I will put this out there now at 11 o’clock that if you time waste with issues that are not upheld and they don’t even have a legal basis, your client will end up paying, very likely could end up paying, the costs wasted. All right. Now you know that that’s correct, don’t you? You know that that could happen.
MR MOULD: It’s – potentially, yes.
HER HONOUR: All right. Okay, so soon after the first break, I’m going to confirm with you that you’ve told your client that. All right…
(Transcript 13 March 2018, p.57 lines 9–27)
Yet another instance was her Honour’s intervention, at what proved to be towards the close of the husband’s cross-examination by counsel for the wife:
MR MOULD: And on that statement, they’re – those direct debits do appear, don’t they? For example 9 January 2017?---Sorry. Okay. Do they appear? If they’re written in front of you then yes, they appear.
On 9 January 2017, there’s a $2000 direct debt and a $200 direct debit to the ATO?---Yes, I - - -
And over the page on 8 December 2016?---I’m sorry. I’ve got two pages in front of me. Which one are we on again, sorry?
Smart Access account - - ‑
HER HONOUR: Stop it. Stop it. No. No. You go away, you get your questions ready, you get your schedule ready and you move onto the next topic and until that’s done, no more questions. Have you or your solicitor ever heard of notices to admit facts?
MR MOULD: Yes, your Honour.
HER HONOUR: Why wasn’t all this done by notices to admit?
MR MOULD: We received disclosure very late, your Honour.
HER HONOUR: No. This matter was set down for a trial a year ago. Why is my time being wasted in this two day trial with: did you pay 200; did you pay 2200; did you sell it for 4200; did you do this; did you do that. This is an utter waste of court time. You are conducting a case that you seem to be trying to prove that tax wasn’t paid precisely on a date, yet you acknowledge that all of the tax has ultimately been paid and so now we’re off squirreling around, looking for where there’s a 4000 that didn’t get there.
I’m noting again the time. It’s now five to 12.The last hour has been a waste of time. Adjourned. We’re having a morning adjournment. You get your head around your brief and don’t put assertions unless they are backed up by evidence. Do you understand - - -
MR MOULD: Yes.
HER HONOUR: - - - Mr Mould?
MR MOULD: Yes, your Honour.
HER HONOUR: I’m very troubled about the way you are conducting this line of inquiry. Very troubled.
(Transcript 13 March 2018, p.81 line 26 to p.82 line 21)
There was also a degree of personalisation in relation to the primary judge’s interventions during the cross-examination of the wife. Early on in the cross‑examination, there was an unprompted intervention by the primary judge who said to the wife “[d]on’t look at your barrister and seek nodding. Okay. If you want to say something, you say it?” (Transcript 13 March 2018, p.94 lines 46–47). Later, the wife was told “you’re pulling a face and shrugging your shoulders” (Transcript 13 March 2018, p.104 line 18), that she was “mumbling” (Transcript 13 March 2018, p.98 line 47) and “mumbling under your breath again” (Transcript 13 March 2018, p.115 lines 1–2). Further, there were regular exhortations made to the wife to be truthful (Transcript 13 March 2018, p.132 lines 2–3), honest (Transcript 13 March 2018, p.120 line 44) and not dishonest (for example, Transcript 13 March 2018, p.111 line 35) or (mostly unwarranted) accusations that she was not being responsive (Transcript 13 March 2018, p.120 lines 23 and 37).
Finally, the primary judge, again without any prompting by counsel for the husband, on one occasion told the wife “[m]adam, I don’t know what you’re saying?” and shortly afterwards continued “[b]ut you’re insistent on having the sort of little last word on a lot of things…and you’re going to do it to me now. So you will let me know when it’s all right to talk?” (Transcript 13 March 2018, p.128 lines 38–44).
Plainly, the primary judge, in her many interventions, regularly adopted a highly personalised approach. The extent to which she did so is troubling.
The third theme relevant to the content of the interventions is related to her Honour unduly “entering into the arena.” There are several interventions in that category, of which two illustrations shall suffice.
Firstly, during the wife’s cross-examination by counsel for the husband, there appears the following:
[MR LINKLATER-STEELE]: But between February of 2013 and January of 2017 for four years you drove the company car, yes?---Yes.
And it was paid for and maintained by the company?---No. I drove the car, but I paid the registration, maintenance, tyres, whatever the costs associated with that vehicle I paid.
All right.
HER HONOUR: Even though it was a company car?---It’s registered in the - - -
Even – no. Will you start answering. You are not responsive. You are sitting there saying that a company car that regardless of that you personally out of your wages for the four years you paid the maintenance and the registration, even though it was a company car?---That’s correct.
MR LINKLATER-STEELE: Ma’am, what you’ve just sold is (sic) simply not true. Do you recall the dispute between yourself and my client when he was sending you text messages saying that, indeed, the registration needed to be paid and he wanted to pay it, but, in fact, the mail was going to your matrimonial home?---We don’t have a mailbox. It goes to a post office box.
HER HONOUR: Madam, you are giving evidence about what you want to say?---Okay.
I will give you one more warning. You are not being responsive?---Okay.
You are hearing something and you don’t want to respond to that. You would prefer to say something else, which isn’t being asked?---Okay. I apologise.
MR LINKLATER-STEELE: Do you – do you - - -
HER HONOUR: Right. Now, listen to the question and answer it honestly. Do you recall the discussion or getting the text asking for – Mr Linklater, ask the question again.
(Transcript 13 March 2018, p.120 lines 12–46)

Whilst this exchange also contains examples of quite unwarranted interventions (for example, after the wife’s entirely appropriate answer about the absence of a mailbox), we are also satisfied that it suggests that her Honour has entered into the fray, especially her most unfortunate exhortation in relation to honesty.
The second example may be found at page 122 of the transcript:
HER HONOUR: For goodness sakes show her. Are you again saying, ““I don’t remember. I don’t remember?” I’m reading from documents prepared on your behalf. And you have been asked, “Isn’t it part of your case that he’s not working hard enough?” and you’re saying, “I don’t recall. I don’t recall.” Are you now reading that?--‑Excuse me.
Are you reading it?---I don’t think it’s on – yes, I do.
Read it?---Yes. I can see it, yes.
What does it say?---
Husband has decided not to work in his capacity, e.g. taking two week holiday to Tasmania and a month’s holiday in [Country R] 2016.
Then why are you sitting there saying, “No, I didn’t say that.” You’re still wasting time. Why did you say that?---It was probably worded badly, your Honour.
What was worded badly? “No, I don’t remember”?---The fact that I asserted that he wasn’t working to his capacity.
You were asked if that was it. “Is that part of your case?” “I don’t remember.” “No, I don’t recall reading that.” It absolutely is part of your case that’s why we’re here?---Okay.
That’s one of the reasons why you haven’t sensibly been able to go outside and settle it because you’re running a case that he’s not working hard enough, aren’t you, madam?---Yes.
(Transcript 13 March 2018, p.122 lines 13-40) (Emphasis altered)
Other examples of entry into the fray, may be found at page 103 and page 132 line 2 to 134 line 21 of the transcript of 13 March 2018, in which latter passage the primary judge, during her own extensive questioning of the wife, inquired, with sarcasm “would you like to answer that truthfully”, thereafter said “[w]ell, now you’ve got another chance to answer the question honestly” and later again, without any request from counsel to do so, instructed the wife to “[a]nswer the question.” Finally, again unprompted, the primary judge challenged the wife by saying “[s]o your answer that you didn’t know was false”.
Her Honour did not maintain appropriate distance from the conflict.
Finally, there are the primary judge’s interventions in relation to her “preliminary view” as to a major issue in the trial, namely whether there should be a transfer of the former matrimonial home to either of the parties.
Her Honour correctly identified that this was a significant issue, and one likely to be impeding settlement. Initially, the primary judge said this:
HER HONOUR: I don’t know that I will be giving the house to anybody. What’s the usual thing that happens? You people know what happens when people argue about the house. I appoint a trustee for sale. It will be sold. If these two want to bid for it, they can bid for it. I don’t rank, you know, nostalgia or the – you know, having to park machinery – parked machinery could actually happen in [AA Street]. Parking machinery wouldn’t convince me – the husband doesn’t live there now. He lives somewhere else with his partner. He hasn’t lived there for a long time. Fine. But, you know, I don’t know the criteria for saying, well, one person is going to get this house as opposed to the other. I haven’t seen a lot of cases on that. Usually we sell it, and they can bid, but they won’t have anything to do with the sale. Mr Linklater-Steele, do you have any position about that?
MR LINKLATER-STEELE: No, no. That’s – no, that’s quite so.
HER HONOUR: Well, that’s usually what happens.
MR LINKLATER-STEELE: That’s an option for your Honour at the end of the day.
HER HONOUR: Yes. It’s usually what happens, because everyone has got a reason why they want to stay. With respect, parking your machinery is convenient. It’s not compulsory. There will be another property you can buy with three, you know – another few acres or a big lot out the back. You could buy any property at all with money. It doesn’t have to be that house. So, you know, again, I don’t know why people get stuck on this. I would have been telling people that from the moment this matter came in my docket. We’re not going to have an argument over it. It will be sold. Sometimes people both want it. What – how – where in the – under the Family Law Act do we determine – I’m not – haven’t got children to raise. I haven’t got a house that someone has inherited. You know, they want it, they buy it. They can actually outbid each other, Mr Mould, couldn’t they?
MR MOULD: Yes. That’s a - - -
HER HONOUR: They can keep doing it. If that’s the point they want to get to, if that’s the level. I didn’t know that the husband, you know – he has obviously got the capacity to pay out the wife, has he?---Yes.
Has that been established?---Yes.
Yes.
MR MOULD: There’s some suggestion of informal approval, yes, in the material.
HER HONOUR: Well, you’ve been to the bank. You’ve got the money all lined up.
MR LINKLATER-STEELE: It’s exhibited to his affidavit, your Honour.
HER HONOUR: Okay. Haven’t read it all yet?---Yes.
Okay. But, you know, if the wife really, really wants it too, fair enough.
MR MOULD: Is it your Honour’s position that you will be ordering the sale of the property in any event?
HER HONOUR: Well, at this stage, I don’t – I’ve – from what I’ve read, and I haven’t read all of the material, but from what I’ve read I just do not know why I would be choosing one party over the other, and, as is my experience in 10 years on the bench – I’m still, you know, got a lot of cases that I haven’t read, but the usual approach of this court is when two people want the same thing, is that we sell it. We sell it independently and they can buy it. They can bid. It’s the same with if everyone wants a piece of jewellery. Usually once people give engagement rings and things that, you know, we don’t sell them, because they’ve actually been given to someone to represent something.
But, you know, just both saying – what if it was a hotel? We both want to run it. We both want to keep. Okay. Sell it. Bid it. Pay for what it is. It’s like this block of land. Just because someone back in 1998, some [farmer], said he would have 16,000, I mean, there’s authority to say that what a price something is listed for is not what it’s valued. It doesn’t represent its value, so, you know, there’s so many of these little issues in this thing, Mr Mould. I mean, you’ve – counsel have got my sympathy, but someone is going to have to make some tough decisions here. It’s going to be me, and my solution that I’ve got paramount in my mind at the moment is that the fairest way to do this is to have the property listed for sale and if the wife wants it, she can buy it. If the husband wants it, he can buy it.
Maybe you gentlemen will be able to persuade me to do something else, but there’s nothing I’ve read that really particularly goes one way or the other, and having the opportunity to park machinery, with respect, sir, you could buy 15 other houses to park your machinery at. So it doesn’t have to be that house. So what’s the difference with any other house? We have people all the time that say, “I want the house,” “No, I want the house”.
MR MOULD: Yes.
HER HONOUR: So you have a think about it. If these people don’t want to settle this, Mr Mould, they’re going to have to live with a third person making all the decisions. And I know you would have told your client this, and I know Mr Mould would have told him this. Once you let the judge decide it’s right out of your hands. All the wheeling and dealing that goes on, it’s finished. I don’t do deals. You mightn’t like the outcome. Unless I’m wildly out of the range it won’t make a difference, will it?
(Transcript 12 March 2018, p.33 line 31 to p.35 line 30)
Counsel for the wife at the commencement of the second day of trial, then said this:
MR MOULD: Now, before we commence, I had redacted my cross-examination having regard to your Honour’s view yesterday, albeit preliminary, that the former matrimonial be listed for sale with trustees instead of allocating it to either of the parties. I - - -
HER HONOUR: Okay. All right.
MR MOULD: It’s quite a significant redaction but - - -
HER HONOUR: Yes. Well, it’s what we usually do when there’s a big dispute so I want the parties know that’s entirely possible. So, you know, your first position might be that you have it, but your second position might be that if I don’t agree with that then it gets sold, but that’s typically what happens.
MR MOULD: Yes.
HER HONOUR: Okay. Okay. Let’s keep going then.
(Transcript 13 March 2018, p.53 lines 17–33)
Later that day, after the wife’s cross-examination had concluded and submissions were about to commence, there was the following exchange:
HER HONOUR: All right. Now, just before we start I just want both the parties to wait outside for a moment. I’ve got something I want to raise without the parties present. And there’s no further witnesses required for cross, is there?
MR LINKLATER-STEELE: No, your Honour. No.
HER HONOUR: Okay. All right. Mr Mould, you seem to be saying that you cut short – your cross-examination short. I said to you that that’s in relation to owning – or buying or selling the property whatever. If you want to ask any other questions about that I can have the husband recalled, but I understand his case that he wants it because of that. I don’t know that I’m going to do that. I’ve heard the wife cross-examined on it. She says she wants to keep it so I don’t think that anything much has been advanced in terms of evidence from the opening of the case, but I told you that most of the time when two people want one asset that we – this court will list it for sale. And I said that if I made those orders I would appoint a trustee for sale so that each party can bid if they want to. All right.
MR MOULD: Yes.
HER HONOUR: Now, having said all of that, have you asked the questions you wanted to ask?
MR MOULD: I haven’t asked any questions about the topic of - - -
HER HONOUR: Well, it’s obvious. You took the decision to do that. That was yours. I said that’s what courts normally do. I don’t want you to complain if I don’t do that. I know the husband’s case, you do too. He wants to put his machinery in there, he has built it, he has got these extraordinarily high sheds, your client is a [health care worker] and she’s a [public servant]. Okay. Now, if you want to ask some questions I will let you, but I don’t want you wasting my time. What else is there to ask? He has put it all in there. You know, you think about what you’re going to say what – and this isn’t going to save you with your submissions because if you don’t finish your submissions today we will be back tomorrow.
MR MOULD: Yes.
HER HONOUR: All right. And I’m not stalling and I’m not inviting you to waste my time. I know the husband’s case. Now, do you think some cross-examination is going to make a difference?
MR MOULD: It maybe.
HER HONOUR: In what way?
MR MOULD: Well, he has a suggestion that the shed is required to park his vehicle.
HER HONOUR: Yes, I know that. I know all that. I’ve been here. I know that.
MR MOULD: We don’t accept that, having regard to photos that have been disclosed by him.
HER HONOUR: How do you mean you don’t accept it?
MR MOULD: The shed is full of junk. You couldn’t park a machine. It’s in - - -
HER HONOUR: Okay. So you’re going to say, “It’s full of junk you won’t use it for that”? Okay. That’s one question what’s the next one?
MR MOULD: We were going to suggest that he didn’t need the – in accordance with [Mr DD] he didn’t need the development application for a property more than 16 acres.
HER HONOUR: That hasn’t even come up. I don’t know where you’re going with that. Is that an issue, Mr Linklater?
MR LINKLATER-STEELE: No, no. [Mr DD] wasn’t even required for cross-examination so I don’t know.
HER HONOUR: No, just focus, Mr Mould. I’m simply saying to you about one issue.
MR MOULD: Yes.
HER HONOUR: Because when you stood up you said, “Well, I didn’t ask any questions about that.” I didn’t tell you you couldn’t. I said what the court normally does. And I’m offering you a lifeline here, but I’m not going to offer it if you’re going to waste my time going down other issues. And I’m asking you what will be the point anyway because he has already said his case? If you want to ask him you’re not going to use it, fine, I’m happy for you to do that, Mr Mould. I will not even entertain seeing if there’s any objection to him being recalled if you want to go off down on some other path. Now, as an officer of the court tell me honestly do you or do you not wish to cross-examine about owning the home because if you do I will allow time now.
If you don’t I will not have you complain at the end that you somehow misunderstood what I said. And I am talking about the issue of retaining the home, not anything else. And that seems to be his case that he can fit all his things there and he has built it all and so forth. I don’t think it’s anything higher than that, is it, Mr Linklater?
MR LINKLATER-STEELE: No.
HER HONOUR: Right. Now, you’ve known this for so long. Now, this is a simple question. Do you want the opportunity to ask him anymore questions?
MR MOULD: Your Honour - - -
HER HONOUR: On that topic. Nothing else.
MR MOULD: I may need some instructions about that.
HER HONOUR: Heaven’s sake.
MR MOULD: Your Honour, I’m instructed we don’t.
HER HONOUR: If you want to do it you can.
MR MOULD: No, your Honour.
HER HONOUR: Right. Thank you. Call them back in. Actually I will give you your time now. We will start the submissions say about 10 past four. Okay. That should be enough time to collect your thoughts?
(Transcript 13 March 2018, p.136 line 11 to p.138 line 31)
There are several observations which must be made about this passage. Firstly, there was no warrant whatsoever for the exchange occurring in the absence of the parties. Secondly, it is fairly plain that her Honour either had changed, or was seriously considering changing her mind, in relation to ordering the sale of the property, and was seeking to afford natural justice to the wife. However, the offer of an opportunity for further cross-examination of the husband was couched in such a hostile way that it was, in itself, intimidatory. Further, her Honour was, most inappropriately, requiring counsel to articulate each proposed question in advance for her assessment as to whether it should be allowed. Moreover, the primary judge’s expostulation in response to counsel’s perfectly reasonable, indeed necessary, suggestion that he needed instructions, “Heaven’s sake,” was accompanied by a heavy sigh, clearly audible on the audio recording. It is yet another example of the unduly personalised nature of some interventions.
The simple fact is that the primary judge, having forcefully expressed a preliminary view, which clearly influenced counsel’s cross-examination, sought to resile from it in a way patently inadequate to properly afford the wife natural justice.
Considering all four themes collectively, we conclude that frequent hallmarks of the impugned interventions were, as the wife contended, wholly unwarranted, unduly personalised, demonstrated an unfortunate entry by the primary judge into the arena, and did not adequately undo the consequences of the very forceful initial expression of a “preliminary view” by the primary judge.
It is no exaggeration to say that, during his cross-examination of the husband, virtually every time counsel for the wife commenced questioning on an issue, the primary judge’s response was to either berate him by questioning the length of time it might take, the competence of the structure of his questions, or their relevance, or sought to impugn his integrity.
During the wife’s evidence, it was largely the same, albeit the primary judge’s interventions often took an even more personalised form, and were exclusively directed to the wife herself.

Tone of voice

Although most of the interventions undertaken by the primary judge were in a neutral tone of voice, on occasion her Honour did demonstrate exasperation, and on other occasions, simulated or actual anger.
An example of both exasperation and mild anger is at page 122 of the transcript of 13 March 2018, lines 3 to 40, recited earlier in these reasons.
Further, clear anger is discernible during the exchanges at page 71, and later at page 81 and 82 of the transcript of 13 March 2018, recited earlier in these reasons at [43].

Evaluation

The primary judge’s nigh incessant interruption of the wife’s counsel’s cross‑examination of the husband, and to a lesser extent, the wife herself during her evidence, by interventions which were often unwarranted, wrong, unduly personalised, and which evidenced intermittent entry into the arena, compel the conclusion that they were excessive. The tone of voice in which they were sometimes undertaken only serves to reinforce that conclusion.

Was the excessive intervention procedurally unfair?

Of themselves, the excessive interventions created not merely the appearance of procedural unfairness, but also the actuality of it. We are well satisfied that counsel for the wife was unable to properly conduct cross-examination of the husband in the face of the barrage of unwarranted interventions; we are less confident, but nonetheless persuaded, that the wife was precluded from properly giving her evidence under cross-examination by virtue of them also. There is a real danger that the trial was therefore unfair, and hence miscarried.
The orders of the primary judge must be set aside, and the matter remitted for hearing before a different judge.

Ground 2: Error of law

Given that the appeal must otherwise succeed, there is no need for us to go on to consider this ground of appeal.

Costs

In the event that the appeal succeeded, the wife did not seek an order for costs against the husband, but rather both parties sought costs certificates under the Federal Proceedings (Costs) Act1981 (Cth) both in relation to the appeal and the rehearing. Such an order is appropriate given the basis upon which the appeal has succeeded.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Tree JJ) delivered on 20 March 2020.

Associate:

Date: 20 March 2020