Scott & Scott (No.3)

The case of *Scott & Scott (No.3)* involved an application by the wife seeking the disqualification of the judge on grounds of apprehended bias, and a separate application to set aside a financial agreement made under s 90C of the *Family Law Act 1975* (Cth). The husband sought declarations that the financial agreement was binding. The wife also raised issues concerning the application of s 102NA of the *Family Law Act 1975* regarding allegations of family violence.

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.