FAMILY COURT OF AUSTRALIA
| SWEEP & SWEEP (NO. 2) | [2018] FamCAFC 228 |
| FAMILY LAW – APPEAL – PROPERTY – Two appeals – No appearance by the respondent – Where the husband drew significant amounts on the mortgage post-separation – Where funds transferred to husband’s partner – Found that husband may retrieve those funds – Where the primary judge found that the husband failed in his duty of disclosure – Adjustment made in favour of the wife in light of the husband’s non-disclosure and the wife’s caring responsibilities – Apprehended bias – Where more than a year lapsed between the complained of conduct and an application for recusal – Waiver - Procedural fairness – Limitations on re-opening of trial - Whether certain factual findings of the primary judge were open on the evidence – Whether the primary judge failed to take into account relevant considerations – Adequacy of reasons – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where further evidence adduced in support of apprehended bias ground to show conduct of the primary judge following delivery of orders – Where the remainder of the evidence is not relevant to the questions on appeal – Application in an appeal allowed in part. |
| Family Law Act 1975 (Cth) ss 75(2), 96AA Family Law Rules 2004 (Cth) rr 11.02, 13.15, 22.30 |
| APPELLANT: | Mr Sweep |
| RESPONDENT: | Ms Sweep |
| FILE NUMBER: | PTW | 5569 | of | 2011 |
| FIRST APPEAL NUMBER: | WA | 29 | of | 2017 |
| SECOND APPEAL NUMBER: | WA | 32 | of | 2017 |
| DATE DELIVERED: | 22 November 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: |
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- AGLC
- Sweep & Sweep (No 2) [2018] FamCAFC 228
- Case
- [2018] FamCAFC 228
- Decision Date
CaseChat Overview and Summary
The court had to decide several legal issues, including whether the husband could retrieve funds he had drawn on the mortgage post-separation, whether the husband's failure to disclose certain information warranted an adjustment in the wife's favour, and whether there were grounds for the primary judge to be recused due to apprehended bias. The court also needed to consider if procedural fairness was upheld and whether the primary judge had failed to consider relevant factors or provided adequate reasoning.
The court dismissed the appeal, finding that the primary judge's findings on the property matters were open to the evidence presented. The court also ruled that the wife's caring responsibilities justified an adjustment in her favour, despite the husband's non-disclosure. Additionally, the court found that the delay in raising the bias allegation and the husband's failure to provide relevant evidence meant that the appeal on this ground was not successful. Consequently, the appeal was dismissed, but the court allowed a part of the husband's application to adduce further evidence, which showed the primary judge's conduct following the delivery of the orders. The form of the orders is subject to the entry of the court's records.
Orders
Orders of the court
1.
The Application in an Appeal filed by the applicant husband on 7 March 2018 be allowed in part.
2.
The appeal be dismissed.
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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