Zha & Wun

Case [2025] FedCFamC1A 12

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Zha & Wun [2025] FedCFamC1A 12

Appeal from: Zha & Wun (No 8) [2024] FedCFamC1F 648
Appeal number(s): NAA 277 of 2024
File number(s): SYC 4269 of 2020
Judgment of: HOWARD J
Date of judgment: 6 February 2025
Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL - COURTS AND JUDGES – where the Kings Counsel briefed on behalf of the Husband at the trial of the matter is the nephew of one of the Judges assigned to the hearing of the appeal – apprehended bias – recusal application granted
Legislation: Family Law Act 1975 (Cth)
Cases cited:

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15

Saklani & Valder (2023) 68 Fam LR 237; [2023] FedCFamC1A 163

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30

Australasian Institute of Judicial Administration, Guide to Judicial Conduct (3rd edition (Revised), 2023)
Number of paragraphs: 23
Date of hearing: 4 February 2025
Place: Hearing in Brisbane (via video link)
Counsel for the Appellant: Mr Moses of Senior Counsel
Solicitor for the Appellant: Pickering Pendleton
Solicitor for the First Respondent: York Law Family Law Specialists
Solicitor for the Second, Third and Fourth Respondents: David H Cohen & Co

ORDERS

NAA 277 of 2024
SYC 4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS ZHA

Appellant
AND:

MR WUN

First Respondent

MR A WUN

Second Respondent

MS YANG (and other named in the Schedule)

Third Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

6 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The Honourable Justice Howard is hereby recused from the further hearing of this appeal.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zha & Wun has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HOWARD J

  1. In July 2024 a trial took place in front of the primary judge. The applicant wife (now the appellant in this appeal) brought proceedings for a financial…

Continue reading Zha & Wun

Sign in free to access the full text

Details
AGLC
Zha & Wun [2025] FedCFamC1A 12
Case
[2025] FedCFamC1A 12
Decision Date

CaseChat Overview and Summary

The case of Zha & Wun involves a property dispute appeal heard by the Federal Circuit and Family Court of Australia. The appellant, Ms. Zha, sought the recusal of Justice Howard from the hearing of the appeal on the grounds of apprehended bias. The legal issue before the court was whether Justice Howard should recuse himself due to his relationship with the King’s Counsel who represented the husband at the trial. The King’s Counsel in question was the nephew of Justice Howard, raising concerns about impartiality.

Justice Howard considered the submissions made by Mr. Moses SC on behalf of Ms. Zha and concluded that both limbs of the test for apprehended bias, as outlined in Ebner v Official Trustee in Bankruptcy, were satisfied. The substantial role of the King’s Counsel in the original trial, along with the Guide to Judicial Conduct, which suggests that Judges should disqualify themselves in cases involving second-degree relatives, supported the appellant's position. Justice Howard found that a fair-minded lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the appeal. The wife had objected to Justice Howard remaining on the panel, and the court accepted this objection as reasonable.

Consequently, the court granted the application for recusal, ordering that Justice Howard be recused from the further hearing of this appeal. This decision was based on the principle that the appearance of impartiality is crucial in legal proceedings, and the relationship between the King’s Counsel and Justice Howard could reasonably lead to apprehensions about bias. The order effectively removes Justice Howard from participating in the appeal process to ensure the integrity of the judicial system is maintained.

Orders

Orders of the court

NAA 277 of 2024

SYC 4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS ZHA

Appellant

AND:

MR WUN

First Respondent

MR A WUN

Second Respondent

MS YANG (and other named in the Schedule)

Third Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

6 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The Honourable Justice Howard is hereby recused from the further hearing of this appeal.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

These are all reasonable submissions made by Mr Moses SC. I accept these submissions. In my conclusion which follows – I have provided further reasoning in relation to the second limb of the test stated in Ebner. CONCLUSION This is a large property case. The property pool as found by the Judge at first instance comprised of more than $500 million. The role of a Kings Counsel appearing on behalf of one of the main protagonists (the husband) is significant and substantial. It is, very often, all pervading. The handprints of the Kings Counsel are indelibly marked across the case. The pleadings,[11] the submissions, the cross examination of the wife conducted by Mr Williams KC. Mr Williams KC had the personal conduct of the matter. He ran the case below for the husband. He was given a copy of the notice of appeal and I have already made reference to reasonable inferences that have been drawn. I am satisfied that both limbs of the test in Ebner have been satisfied. [11] Points of claim were exchanged in this matter. Finally, I make mention of the Guide to Judicial Conduct (Australasian Institute of Judicial Administration, 3rd edition (Revised), 2023) (“the Guide”).[12] At 3.3.4 the Guide outlines personal relationships and includes “a nephew” as a second-degree relationship noting that where the Judge is in a relationship of the second degree to Counsel having the actual conduct of the case – ordinarily most Judges would and should disqualify themselves. There are exceptions including where the parties to a case consent to the Judge sitting. The parties were given an opportunity to object to my remaining as a member of the Full Court on the hearing of this appeal. The wife has objected and maintains her objection. It was not unreasonable for her to do so. I have come to the conclusion that a fair-minded lay observer might reasonably apprehend that the subject Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide.[13] This is especially so given that the hypothetical observer is conceived of as a member of the public. A member of the public might reasonably apprehend that one of the appeal Judges might not bring an impartial mind to the resolution of the appeal – given that the Judge’s nephew was integrally involved as the Kings Counsel for the husband at first instance. [12] Australasian Institute of Judicial Administration, Guide to Judicial Conduct (3rd edition (Revised), 2023).[13] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6]. The application for recusal is granted.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.