LSB December 2021 HR

FAMILY LAW CASE NOTES
Family Law Case Notes
CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK
PROPERTY – PRIVATE CONTACT BETWEEN
BARRISTER AND JUDGE WHILE CASE
WAS UNDER WAY GIVES RISE TO
APPREHENDED BIAS
In Charisteas [2021] HCA 29 (6 October,
2021) the High Court of Australia
(Kiefel CJ, Gageler, Keane, Gordon
and Gleeson JJ) considered a recusal
application on the ground of apprehended
bias.
The High Court said (from [14]):
“ … [W]hat is said might have led the
trial judge to decide the case other than on
its legal and factual merits was identified.
It comprised the various communications
between the trial judge and the wife’s
barrister ‘otherwise than in the presence
of or with the previous knowledge and
consent of ’ [cf Magistrates’ Court at Lilydale
[1973] VR 122 at 127] the other parties
to the litigation. … The communications
should not have taken place. …
[15] A fairminded lay observer …
would reasonably apprehend that the trial
judge might not bring an impartial mind to
the resolution of the questions his Honour
was required to decide. …
( … )
[18] … The apprehension of bias
principle is so important to perceptions
of independence and impartiality ‘that
even the appearance of departure from it is
prohibited lest the integrity of the judicial
system be undermined’ (emphasis added)
Ebner [2000] HCA 63 (‘Ebner’). …
[19] The lack of disclosure in this case
is particularly troubling. It is difficult to
comprehend how the trial judge could
have failed to appreciate the need to
disclose the communications …
( … )
[21] … The hypothetical observer is
not conceived of as a lawyer but a member
of the public served by the courts. …
[22] It may be accepted that many
judges and lawyers, barristers in particular,
may have continuing professional and
personal connections. … [T]heir contact
may be resumed … by a judge making
36 THE BULLETIN December 2021
orders and publishing reasons, thereby
bringing the litigation to an end. …”
The appeal was allowed and the matter
remitted for rehearing with costs.
PROPERTY – LITIGATION FUNDING
ORDER AGAINST THIRD PARTY –
IRREVERSIBILITY OF ORDER AT FINAL
HEARING NOT FATAL TO APPLICATION
In Lao & Zeng [2021] FedCFamC1A
17 (23 September, 2021) the Full Court
(Ainslie-Wallace, Ryan & Austin JJ)
considered a litigation funding order that
required the wife’s mother to pay $350,000
towards the husband’s legal fees.
The wife’s legal fees were funded by
her mother, the husband seeking that the
mother also pay his fees.
As to the reversibility of the litigation
funding order, Ryan J (with whom Ainslie-
Wallace J agreed) said (from [48]):
“( … ) Reversibility and the ability to
take the payment into account in the final
hearing are considerations of fluctuating
relevance having regard to the source of
power under which the payment is sought.
…
[49] It is … significant that in [Zschokke
[1996] FamCA 79] … the Full Court
said that there must be a question about
whether it is possible to make a litigation
funding order under s 117(2) even though
the order could not be taken into account
in a final hearing. For example in parenting
proceedings or where no right of action
exists under s 79. If their Honours
considered that reversibility and the ability
to take the amount into account in a final
property hearing was an essential element
to the exercise of power under s 117(2) it
follows that in the examples given such an
order could not be made. …
[50] … [T]here will be cases where
even though the amount paid may not
be able to be … taken into account in
the final hearing, the interests of justice
may nevertheless justify an order under
s 117(2) for interim funding or security
for costs. ( … )”
The majority dismissed the appeal with
costs.
CHILDREN – PARENTAL RESPONSIBILITY
– NO ERROR IN VESTING SOLICITOR WITH
PARENTAL RESPONSIBILITY FOR LIMITED
PURPOSE OF A TORT CLAIM AGAINST
MOTHER
In Agambar [2021] FedCFamC1A
1 (2 September, 2021) the Full Court
(Strickland, Austin and Baumann JJ) heard
a father’s appeal from a decision that vested
a solicitor with parental responsibility for
the limited purpose of instructing lawyers
to act on behalf of the children in tort
claims against their mother.
Weeks after separation, the mother
lost control of her car and crashed while
driving the parties’ three children. One
child was killed and the other two were
injured.
The children had personal injury claims
against the mother.
The mother conceded that she could
not act as litigation guardian and sought
“Mr B” to be given parental responsibility
for the limited purpose of instructing
lawyers to act in the tort claims.
Dealing with the father’s complaint
as to the interference with the parents’
parental responsibility, the Full Court said
(from [38]):
“( … ) In VR & RR [2002] FamCA
320 (‘VR & RR’) the Full Court …
dismissed the aspect of the appeal which
concerned the trespass upon parental
autonomy by the appealed orders …
( … )
[39] The Full Court … recognised
how the circumstances which are peculiar
to a specific case might justify judicial
interference with the parental responsibility
vested in parents either by law or former
court order. … [T]he primary judge’s
interference with the allocation of parental
responsibility was warranted because both
parents desired it to resolve their impasse
so the children’s welfare could be clearly
advanced. Both parents sought an order