WOOTTON & HILLIER (No.2)

[2012] FMCAfam 1045

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOOTTON & HILLIER (No.2) [2012] FMCAfam 1045

FAMILY LAW – Disqualification application – relevant principles – question from Bench regarding ‘battered wife syndrome’ in circumstances where there are detailed and long-standing allegations concerning a history of emotional, verbal and physical abuse – principal application to set aside a binding financial agreement on grounds of duress, undue influence and unconscionable conduct.

Family Law Act 1975, ss.79A, 90G(1)(b), 90K(1)(a), (b), (d) & (e)

Antoun v The Queen (2006) ALJR 497; (2006) ALR 51
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Re JRL; ex parte CJL (1986) 161 CLR 342
Marsden v Winch (2010) 42 Fam LR 1

Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Nadkarni & Nadkarni [2011] FamCAFC 160
Smits v Roach (2006) 227 CLR 423
Vakauta v Kelly (1989) 167 CLR 568

Applicant: MS WOOTTON

Respondent: MR HILLIER

File Number: CAC 2423 of 2007

Judgment of: Neville FM

Hearing date: 18 September 2012

Date of Last Submission: 18 September 2012

Delivered at: Canberra

Delivered on: 18 September 2012

REPRESENTATION

Counsel for the Applicant: Mr M Kearney

Solicitors for the Applicant: Armstrong Legal, Canberra

Counsel for the Respondent: Mr P Campton

Solicitors for the Respondent: Somerville Legal, North Sydney

ORDERS

1. The oral application for disqualification made on 18 September 2012 be refused.

IT IS NOTED that publication of this judgment under the pseudonym Wootton & Hillier (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 2423 of 2007

MS WOOTTON

Applicant

And

MR HILLIER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The immediate application before the Court, made orally on behalf of the Respondent Husband on 18^th September 2012, is that I disqualify myself from further involvement in the current proceeding, which concerns the Wife’s application to set aside a binding financial agreement (“the BFA”) that was entered into by the parties and is dated 31^st May 2007.  The ground of the application is apprehended bias, which is said to be based on three factors that are outlined later in these reasons.  Counsel for the Applicant Wife opposed the disqualification application.

2. Following the delivery, in a somewhat attenuated form, of oral reasons, including an outline of principle in relation to apprehended bias which referred to, among other cases, the High Court’s most recent consideration of the subject in Michael Wilson & Partners Limited v Nicholls, I refused the Husband’s disqualification application.[1]  In the course of delivering my reasons, I reserved my position to revise them.  What follows are those reasons as revised.