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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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
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…
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- Zha & Wun [2025] FedCFamC1A 12
- Case
- [2025] FedCFamC1A 12
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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