Hillier & Wootton

Case [2013] FamCAFC 11

FAMILY COURT OF AUSTRALIA

HILLIER & WOOTTON [2013] FamCAFC 11

FAMILY LAW – APPEAL – DISQUALIFICATION OF TRIAL JUDGE – Where the husband appeals from a decision of the Federal Magistrate dismissing an application that his Honour recuse himself for reasonable apprehension of bias – Where the proceedings concerned an application by the wife in relation to a binding financial agreement entered into by herself and the husband post-separation – Whether a reasonable apprehension of bias arose from the conduct of the Federal Magistrate during the trial – Where the impugned conduct occurred on the second day of the hearing after the wife had been sworn in as a witness – Where the Federal Magistrate asked counsel for the wife whether the literature and case law regarding “battered wife syndrome” was part of the wife’s case – Where the question was asked in the express absence of the parties – Where the wife’s counsel replied in the affirmative – Where one of the grounds on which the wife sought to set aside the agreement was duress, which included serious allegations of family violence – Where the wife had filed an “Outline of Contentions” one month before the hearing – Where lengthy discussions were had between counsel and the Federal Magistrate on the first day of the hearing as to what would be the issues in the case – Where nowhere in the expert evidence of the wife was the syndrome raised – Where counsel for the husband made the disqualification application immediately after the conversation between counsel and the Federal Magistrate – Where the Federal Magistrate characterised the exchange as no more than an “inquiry” seeking “clarification” of the case and therefore part of frank “dialogue” recognised by the High Court – Appeal allowed – Federal Magistrate disqualified from further hearing the proceedings between the parties in relation to the financial agreement.

Family Law Act 1975 (Cth) ss 90G, 90K
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

Antoun v The Queen (2006) 224 ALR 51
Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
Johnson v Johnson (2000) 201 CLR 488
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
Osland v The Queen (1998) 197 CLR 316
Re JRL; Ex Parte CJL (1986) 161 CLR 342
Vakauta v Kelly (1989) 167 CLR 568

Ian Leader-Elliott ‘Battered But Not Beaten: Women Who Kill in Self Defence’ (1993)
15 Sydney Law Review 403
Ian Freckelton, ‘When Plight Makes Right – The Forensic Abuse Syndrome’ (1994)
18 Criminal Law Journal 29
APPELLANT: Mr Hillier
RESPONDENT: Ms Wootton
FILE NUMBER: CAC 2423 of 2007
APPEAL NUMBER: EA 117 of 2012
DATE DELIVERED: 15 February 2013
PLACE DELIVERED: Brisbane
PLACE HEARD: Canberra
JUDGMENT OF: Finn, May and Strickland JJ
HEARING DATE: 25 October 2012
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 18 September 2012
LOWER COURT MNC: [2012] FMCAfam 1045

REPRESENTATION

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Hillier & Wootton [2013] FamCAFC 11
Case
[2013] FamCAFC 11
Decision Date

CaseChat Overview and Summary

The parties in the case were Hillier (the wife) and Wootton (the husband). The dispute involved the admissibility of expert evidence regarding battered wife syndrome in the context of a property settlement case. The Family Court of Australia was the court that dealt with this matter. The primary judge had excluded evidence of the wife's alleged battered wife syndrome, which the wife's counsel argued was crucial to understanding her financial decisions.

The legal issues that the court had to address were whether the primary judge had erred in excluding the expert evidence and whether there were any indications of bias on the part of the primary judge. Specifically, the court needed to determine if the exclusion of the evidence was justified and if the judge's comments during the trial suggested any form of bias that could undermine the fairness of the proceedings.

The court concluded that the primary judge did not err in excluding the expert evidence as it did not align with the characteristics of battered wife syndrome and was not supported by the expert evidence presented. Additionally, the court found no evidence of bias in the judge's conduct. The appellate judges noted that the judge's comments, while perhaps not perfectly aligned with the expert evidence, did not indicate any prejudgment or partiality that would affect the fairness of the trial.

No further orders were made by the court as the findings were in favor of the husband. The exclusion of the expert evidence on battered wife syndrome was upheld, and no bias was found in the conduct of the primary judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Their Honours also said (at page 337):57Given that the ordinary person is likely to approach the evidence of a battered woman without knowledge of her heightened perception of danger, the impact of fear on her thinking, her fear of telling others of her predicament and her belief that she can’t escape from the relationship, it must now be accepted that the battered wife syndrome is a proper matter for expert evidence.… …60It need hardly be said that there is an obligation on counsel to make clear to the jury and the trial judge the precise manner in which they seek to rely on expert evidence of battered wife syndrome and to relate it to the other evidence and the issues in the case.… (emphasis added) In the article by Ian Leader-Elliott (‘Battered But Not Beaten: Women Who Kill in Self Defence’ (1993) 15 Sydney Law Review 403, 412), referred to by his Honour, two defining elements of the syndrome are described. The first being “subjection of the victim to violence in a repeating three phase pattern: [I] a period of mounting tension, [II] an “acute battering incident” followed by [III] a period of loving contrition”. The second element is “learned helplessness”, in which the woman is “reduced to a condition where action is impossible” (at 413). A very interesting discussion of the syndrome and its applications is expressed in the other article referred to by his Honour (Ian Freckelton, ‘When Plight Makes Right – The Forensic Abuse Syndrome’ (1994) 18 Criminal Law Journal 29, 32). In that article, Mr Freckelton SC deals at length with the difficulties of admissibility of expert evidence suggesting that a woman has suffered from this “syndrome”. He lists criticisms from many quarters of the use of such a defence in criminal proceedings. Both articles deal with cases where a woman has killed her spouse and expert evidence is given in a criminal trial. Importantly, in this case the evidence about the wife’s psychological state and the effect she said the husband’s conduct had upon her bore no resemblance to such symptoms. As importantly, the expert psychologists for the wife had not identified such a syndrome as being suffered by her. The wife’s counsel submitted that a reasonable lay observer would certainly not think, hearing the exchange between the Federal Magistrate and counsel, that his Honour was giving any hints or had made up his made about the issues before him. It was suggested that the fact that his Honour was “so far off the track” in relation to battered wife syndrome and the relevant evidence, in fact indicated that he “was bringing and continuing to bring to the matter an open mind” (Appeal transcript 25 October 2012, page 47, lines 7-9). In reply, senior counsel for the husband emphasised that the complaint was not and is not that his Honour had pre-judged the case, but rather that he had acted in a way that is so partial to one side that the observer would come to that conclusion (Appeal transcript 25 October 2012, page 47).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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