FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Murtas & Murtas [2024] FedCFamC1A 40
Appeal from: Murtas & Murtas [2023] FedCFamC2F 1631 Appeal number: NAA 333 of 2023 File number: SYC 392 of 2023 Judgment of: RIETHMULLER J Date of judgment: 27 March 2024 Catchwords: FAMILY LAW – APPEAL – Apprehended bias – Robust discussion at directions hearing does not satisfy apprehended bias test – Even if comments satisfied test, there was no application for disqualification of the judge made at the time the facts giving rise to the claim of apprehended bias were known to appellant’s legal representatives – Appellant taken to have waived right to seek disqualification of judge – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Divorce Application – Date of separation in dispute – Hearing more than 12 months after date of separation alleged by Appellant – Initial Divorce Application discontinued and divorce granted by consent on oral application – Where appellant sought indemnity costs – Appellant’s costs application dismissed – Whether primary judge erred in refusing to hear hypothetical application in order to determine precise date of separation – No error by primary judge – Appeal dismissed.
Legislation: Family Law Act 1975 (Cth) ss 48, 117 Cases cited: Acheson & Begbie (No 2) [2024] FedCFamC1A 21
Ebnerv Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
Unions NSW v New South Wales (2023) 407 ALR 277; [2023] HCA 4
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Vang & Chung [2024] FedCFamC1A 25
Number of paragraphs: 24 Date of hearing: 25 March 2024 Place: Parramatta Counsel for the Appellant: Mr Levet Solicitor for the Appellant: Mills Oakley Counsel for the Respondent: Mr Liedermann Solicitor for the Respondent: IT Lawyers ORDERS
NAA 333 of 2023
SYC 392 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MURTAS
Appellant
AND: MR MURTAS
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
27 MARCH 2024
THE COURT ORDERS THAT:
1.Appeal NAA 333 of 2023 be dismissed.
2.The appellant pay the respondent's costs fixed at $11,674.65.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence,…
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CaseChat Overview and Summary
The court first addressed the issue of apprehended bias, noting that even if the comments made by the primary judge during the directions hearing could be seen as satisfying the test for apprehended bias, the appellant had not made any application for the judge's disqualification at the time the facts giving rise to the claim were known to the appellant's legal representatives. The court found that this failure amounted to a waiver of the right to seek disqualification, and thus this ground of appeal could not succeed. The court also examined the issue of costs, holding that the primary judge did not err in declining to hear the hypothetical dispute to determine the precise date of separation. The court concluded that there was no error by the primary judge in this regard, and the appeal was dismissed.
In light of the dismissal of the appeal, the court ordered that the appellant pay the respondent's costs, which were fixed at $11,674.65. The court's reasoning was grounded in established legal principles, which provided that the court cannot try a hypothetical action between the parties, and that to do so would burden the parties with the costs of a litigated action that they had avoided through settlement or extra-curial action. The court also found no public policy consideration that would compel the judge to hear a hypothetical dispute in the context of a costs application.
The final orders of the court included the dismissal of the appeal and the direction that the appellant pay the respondent's costs as agreed by the parties. The form of the order was subject to review for minor typographical or grammatical errors or to record a variation to the order. This case highlights the importance of timely applications for disqualification in cases of apprehended bias and the court's reluctance to engage in hypothetical disputes in the context of costs applications.
Orders
Orders of the court
NAA 333 of 2023
SYC 392 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS MURTAS
Appellant
AND:
MR MURTAS
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
27 MARCH 2024
THE COURT ORDERS THAT:
1. Appeal NAA 333 of 2023 be dismissed.
2. The appellant pay the respondent's costs fixed at $11,674.65.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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
Ratio Decidendi
Legal Principle Established
Even if the comments by the primary judge satisfied the test for apprehended bias, the failure of the appellant to make any application that the primary judge disqualify himself resulted in a waiver of this right by the appellant in the circumstances of this case. As a result, this ground of appeal cannot succeed.Failure to make a finding of fact as to the date of separation The first ground argued by the appellant was that the primary judge erred by declining to determine the precise date of separation and therefore failed to have regard to a relevant consideration in the costs application: see generally House v The King (1936) 55 CLR 499 (at 504–505). As the Divorce Application had been discontinued (and a second oral application granted) there were no proceedings requiring a finding as to the date of separation. As McHugh J said in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624:The court cannot try a hypothetical action between the parties [Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201]. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action [Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201]. The reasons of McHugh J in Lai Qin have been cited with approval in Unions NSW v New South Wales (2023) 407 ALR 277 and applied in this court: see Vang & Chung [2024] FedCFamC1A 25. There is no reason to doubt these authorities. Therefore, the argument that the primary judge erred in declining to proceed to hear and determine the now hypothetical divorce issue cannot succeed. Counsel for the appellant argued that there was a public policy requirement that the precise date of separation be determined in order to avoid divorce applicants alleging that separation occurred earlier than the true date of separation. I am not persuaded that there can be any public policy consideration that would result in a judge being required to hear a hypothetical dispute in the context of a costs application. If there were public policy issues concerning the divorce application, the primary judge would have had to deal with those issues when determining whether to make the divorce order. As the primary judge did not err in declining to hear the now hypothetical dispute to determine the precise date of separation, it cannot be said that he failed to take it into account. For these reasons, this ground of appeal cannot succeed.Conclusions As the appellant has not established either ground of appeal the appeal must be dismissed. The parties agreed that in the event the appeal was dismissed the appellant should pay the respondent’s costs fixed at $11,674.65. I therefore make orders accordingly.