FAMILY COURT OF AUSTRALIA
| SCOTT & SCOTT (NO. 3) | [2019] FamCA 936 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – Application by wife seeking disqualification of a judge on the ground of alleged bias – Where the wife’s application to have the disqualification application heard by another judge is refused – Where the wife’s allegations of actual bias were unsustained and the application confined to apprehended bias – Where principles in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 are applied – Where it is determined the judge’s interaction with the wife during previous Court events was no more than the proper discharge of judicial duty – Where the application for disqualification is dismissed. FAMILY LAW – PROPERTY SETTLEMENT – Financial Agreement – Where the financial agreement purports to be made pursuant to s 90C of the Family Law Act 1975 (Cth) – Where the wife seeks a declaration under Part VIIIA of the Act that the financial agreement is either not binding or set aside – Where the husband opposes the wife’s application and seeks a declaration the financial agreement is binding – Where the husband has the onus of proving the binding nature of the agreement – Where the certificate of independent legal advice provided by the wife’s solicitor and the recital within the agreement on their face satisfy s 90G(1)(b) of the Act – Where the evidentiary burden falls to the wife to demonstrate some deficiency in the nature of the legal advice she received – Where the wife failed to established that the independent legal advice was deficient – Where the wife pleads the financial agreement was vitiated by duress, undue influence, and unconscionable conduct by the husband – Where Thorne v Kennedy (2017) 263 CLR 85 is considered – Where the wife fails to prove she was acting under duress when she signed the agreement – Where the wife fails to establish she entered the agreement due to the husband’s undue influence – Where the wife was not subject to some special disadvantage and even if she was, her evidence does not prove the husband’s unconscionable conduct – Where the wife contends the agreement is void or impracticable to implement under s 90K(1) of the Act because the agreement failed to take into account future liabilities of the parties – Where the wife fails to establish how the existence of debts accumulated after the agreement was made renders it void or impracticable to implement – Where the wife’s assertion that it is impracticable to split the parties’ superannuation interests is rejected – Where the wife’s contention that the agreement is unenforceable under the equitable doctrine of laches fails – Where the agreement is binding on the parties and should not be set aside – Where Part VIII of the Act does not apply – Application dismissed – Costs reserved. FAMILY LAW – PRACTICE AND PROCEDURE – Application of s 102NA of the Family Law Act 1975 (Cth) – Where allegations of… |
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- AGLC
- Scott & Scott (No.3) [2019] FamCA 936
- Case
- [2019] FamCA 936
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the judge's conduct gave rise to a reasonable apprehension of bias, applying the principles from *Ebner v Official Trustee in Bankruptcy*. It also had to consider whether the financial agreement was binding, with the husband bearing the onus of proof. This involved assessing whether the agreement met the requirements of s 90G(1)(b) of the Act, and whether the wife had discharged the evidentiary burden of demonstrating deficiencies in the independent legal advice she received. Furthermore, the court examined the wife's claims that the agreement was vitiated by duress, undue influence, and unconscionable conduct, referencing *Thorne v Kennedy*, and whether the agreement was void or impracticable to implement under s 90K(1) due to future liabilities or the splitting of superannuation interests. Finally, the court considered the application of s 102NA of the Act in relation to family violence allegations and the wife's unrepresented status.
On the issue of apprehended bias, the court found that the wife's allegations were unsustained and that her interactions with the judge during previous court events did not exceed the proper discharge of judicial duty. Regarding the financial agreement, the court held that the certificate of independent legal advice and the recitals within the agreement satisfied s 90G(1)(b), and the wife failed to establish that the advice received was deficient. The court also found that the wife failed to prove duress, undue influence, or unconscionable conduct, noting she was not subject to a special disadvantage or that the husband engaged in unconscionable conduct. The claims that the agreement was void or impracticable under s 90K(1) were also rejected, as were contentions regarding laches and the impracticability of splitting superannuation. The court determined that the agreement was binding. Concerning s 102NA, the court found that none of the conditions for its application were met, and there was no compelling reason for the court to act voluntarily under s 102NA(3), especially as the wife declined alternative strategies.
The court dismissed the wife's applications and declared the financial agreement to be binding. The parties were ordered to take all necessary steps to implement the agreement, including the transfer of specified properties and the winding up of a trust. The Registrar of the Family Court of Australia at Newcastle was empowered to execute documents on behalf of the parties if they refused to do so. Costs were reserved for 28 days.
Orders
Orders of the court
1.
The Application in a Case filed by the applicant on 31 October 2019 is dismissed.
2.
The Amended Initiating Application filed by the applicant on 17 October 2019 is dismissed.
3.
Declaration that the financial agreement executed by the applicant on 20 December 2010 and by the respondent on 4 February 2011 is a binding financial agreement within the meaning of Part VIIIA of the Family Law Act 1975 (Cth).
4.
The parties shall forthwith do all acts and things necessary to implement the binding financial agreement and in aid thereof and without implying limitation:
(a) The applicant shall transfer all her right, title and interest in the real property and improvements comprising 1 & 2 Q Street, R Town NSW, being Folio Identifier … and Auto Consol …, to the respondent in accordance with clause 9 of the binding financial agreement;
(b) The respondent shall transfer all his right, title and interest in the real property and improvements comprising Y Street, M Town NSW, being Folio Identifier …, to the applicant in accordance with clause 10 of the binding financial agreement;
(c) The respondent shall sell the real property and improvements comprising EE Street, GG Town, NSW, being Folio Identifier … and Auto Consol … and apply the proceeds of sale in accordance with clauses 11 and 12 of the binding financial agreement; and
(d) The parties shall, as directors of E Pty Ltd, the trustee of the Scott Family Trust, wind-up the Scott Family Trust in accordance with Clause 13 of the binding financial agreement.
5.
In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act 1975 (Cth).
6.
Otherwise, save as to costs, the Response to an Amended Initiating Application filed by the husband on 13 September 2019 is dismissed.
7.
Costs are reserved for 28 days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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