Sweep & Sweep (No 2)

Case [2018] FamCAFC 228


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
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Clausen & Clausen (1995) FLC 92-595; [1995] FamCA 10
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter and De Winter (1979) FLC 90-605
Ebner v Official Trustee and Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Ferraro & Ferraro (1993) FLC 92-335; [1992] FamCA 64
Gaspaldi & Gaspaldi [2008] FamCAFC 134
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kannis and Kannis (2003) FLC 93-135; [2002] FamCA 1150
Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679; [2016] HCA 22
Stephens & Stephens (Enforcement) (2009) FLC 93-425; [2009] FamCAFC 240
Sweep & Sweep and Anor [2017] FCWA 102
Sweep & Sweep [2017] FCWA 161
Tate & Tate (2000) FLC 93-047; [2000] FamCA 1040
Vass & Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51
Weir& Weir (1993) FLC 92-338; [1992] FamCA 69
XYZ Pty Ltd & Charisteas; ABC Pty Ltd & Charisteas (2017) FLC 93-782; [2017] FamCAFC 112
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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Details
AGLC
Sweep & Sweep (No 2) [2018] FamCAFC 228
Case
[2018] FamCAFC 228
Decision Date

CaseChat Overview and Summary

The case of Sweep & Sweep (No 2) involved two appeals brought by the husband against a family law decision. The dispute centred around property matters post-separation, including the husband's actions with respect to a mortgage and the subsequent transfer of funds to his partner. The wife, who did not appear in court for the appeal, argued that the husband had failed in his duty of disclosure and that she should be compensated due to her caring responsibilities.

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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