Michael Wilson & Partners Ltd v Nicholls [2020] FamCA 298 | Case summary | Zoe

CTHFamCA

Michael Wilson & Partners Ltd v Nicholls

[2020] FamCA 298

Family Court of Australia|2020-04-30|Before: Foster J

At a glance

AI case summary

Result

defendant. The husband's recusal application and s 79A application were dismissed; costs submissions were directed, with the costs decision reserved.

Key principles

A recusal application based on apprehended bias requires the applicant to identify the matter said to affect impartiality and demonstrate a logical connection between that matter...
Under s 79A(1)(a) of the Family Law Act 1975 (Cth), the applicant had to provide evidence capable of satisfying the Court that a miscarriage of justice occurred for a reason...
A party's consent to property orders, even if the party later says the orders do not reflect their contributions, does not by itself establish a miscarriage of justice. Here,...

Issues before the court

Whether the judge should recuse himself for apprehended bias.
Whether the consent property orders of 17 August 2017 should be set aside under s 79A(1)(a).

Cited legislation

2 cited instruments linked from this judgment.

Plain English Summary

The husband asked the judge to step aside, saying that the Court could not decide fairly because a Country B agreement had been raised earlier. He also sought to undo property orders that he and the wife had agreed to while represented by lawyers. The Court dismissed both applications. It found the recusal objection was late and did not explain how the matters raised could logically lead to partial decision-making. It also found that the husband had not produced evidence establishing a miscarriage of justice under s 79A. The judgment does not decide the validity or effect of the Country B agreement as a separate final determination.

AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.

What happened

The judgment is Akhtar & Gaber [2020] FamCA 298, delivered by Foster J in the Family Court of Australia on 30 April 2020. Although the prompt's heading mentions Michael Wilson & Partners Ltd v Nicholls, that is a High Court case cited in this judgment on waiver of an objection to a judge's participation. The judgment being analysed is Akhtar & Gaber.

The parties' property dispute had been resolved by consent orders on 17 August 2017. The husband was represented by counsel and the wife by a solicitor when the orders were made (para 2). In broad terms, the orders required the husband to transfer the Suburb E property to the wife, pay her $60,000 in two instalments, and provide for the possible sale of another property if the payment was not made within two months. The orders also dealt with liabilities, other assets, costs and documents needed to register the parties' divorce in Country B (para 3).

The judgment records that the husband had raised a purported Country B marriage agreement during a court event on 16 May 2017. The transcript showed that he was told there was “no binding financial agreement under our law” (para 37). The 2020 judgment did not determine the agreement's validity as a separate issue. Its reasoning was that the agreement's asserted existence did not, on the material presented, establish a basis to set aside the later consent orders or disqualify the judge.

The husband later sought to set aside the 2017 orders. After procedural directions, the Court treated his application as one under s 79A of the Family Law Act 1975 (Cth), and directed him to specify the statutory basis relied upon (paras 7–9). At the hearing on 13 February 2020, he also applied orally for the judge to recuse himself. The Court dismissed that application and then dismissed the s 79A application. The formal orders left any costs decision to later written submissions.

Why the court decided this way

The Court addressed two separate questions. First, whether the judge should recuse himself because of apprehended bias. Second, whether the 2017 consent property orders should be set aside under s 79A(1)(a).

For recusal, the judgment relied on the formulation quoted from Sellers & Burns: an applicant must identify the matter said to affect impartiality and show a logical connection between that matter and the possibility the judge might not bring an impartial mind to the decision (para 14). The husband said that the purported Country B agreement had been raised previously, that he believed the Court would not be impartial, and that he had no prospect of a fair trial (paras 12–13). Foster J considered those assertions insufficiently developed. The judgment found no demonstrated logical connection between the agreement's earlier mention and a reasonable apprehension that the judge would decide the current issues with a closed or partial mind (paras 17, 22).

Delay was an additional reason. The judgment records that the proceedings had come before the Court on a number of occasions and that the husband had not raised the recusal application promptly (para 21). It drew on Smits v Roach and Michael Wilson & Partners Ltd v Nicholls for the proposition that a party who knows of circumstances said to disqualify a judge may waive an objection by acquiescing in the proceedings rather than objecting promptly (paras 18–20). The judgment therefore relied both on delay and on the failure to establish the substantive connection required for apprehended bias.

For the s 79A application, the Court set out the statutory grounds. Section 79A(1)(a), as reproduced in the reasons, allows a property order to be varied or set aside if the Court is satisfied there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, false evidence or another circumstance (para 23). The Court understood the husband to rely on the “any other circumstance” limb and stated that such circumstances must have existed at or before the order was made (paras 24–26).

The husband relied on his affidavit, attachments, the Country B agreement, the terms of the 2017 orders and the earlier transcript (paras 34–37). The Court concluded that he had not adduced evidence satisfying the statutory requirement of a miscarriage of justice (para 38). His disagreement with the property outcome, including his contention that the consent orders did not reflect the parties' contributions, did not itself meet that test. Both parties had legal representation when they consented to the orders (paras 2, 35, 38–40).

Before and after state of the law

The judgment does not purport to change the law. It applies the statutory language of s 79A(1)(a) and principles from earlier authorities concerning consent orders and judicial disqualification.

For recusal, the judgment adopts the fair-minded lay observer test and the requirement for a logical connection between the identified matter and possible partiality (para 14). It also applies the principle that an objection based on known circumstances should be raised promptly, relying on Smits and Michael Wilson (paras 18–21). The decision is an application of those stated principles to the husband's asserted grounds and the timing of his objection.

For setting aside consent property orders, the judgment applies s 79A and cites Holland & Holland, Gebert & Gebert, Smith & Smith and Suiker & Suiker (paras 29–33). Those authorities are used to explain why dissatisfaction with a consent outcome is not, without more, a miscarriage of justice, and why courts place reliance on consent. The judgment also acknowledges that circumstances such as duress, ignorance or incompetent advice may be relevant in a suitable case, but it does not find those circumstances established here (paras 29–30).

The “after” position evident from this judgment is therefore limited: it records the application of existing statutory and case-law principles to this dispute. It does not state that the law was altered by the decision. Nor does the supplied judgment provide information about how later courts treated Akhtar & Gaber.

Key passages with plain-English translation

At para 14, the judgment states that a recusal applicant must identify the matter said to affect the judge's impartiality and show a logical connection between that matter and the possibility of partial decision-making. In plain English, asserting that a judge may be biased is not enough. The applicant must explain what gives rise to the concern and why it could affect the judge's approach to the actual issues.

At paras 18–20, the reasons quote authorities on waiver where a party knows of circumstances said to justify disqualification but does not object promptly. In plain English, a party's delay can matter where the relevant facts were already known and the proceeding continued without objection. Foster J treated the husband's delay as a reason his recusal application failed (para 21).

At para 23, the judgment reproduces s 79A(1)(a). The provision concerns a miscarriage of justice caused by one of the listed matters or another circumstance. In plain English, it is not a general opportunity to reopen a property settlement because a party later regrets or disputes the outcome. The statutory condition must be met.

At para 29, Holland & Holland is quoted for the proposition that agreeing to an order which may not adequately reflect a party's entitlements does not, by itself, prove a miscarriage of justice. The passage also recognises that an order far outside a just and equitable range may, in some circumstances, support an inference of duress, ignorance or incompetent advice. At para 30, Gebert & Gebert is used to qualify that point: an apparently unreasonable order alone does not necessarily justify such an inference, and there may be rational reasons for agreeing to an outcome.

At para 38, Foster J states that the husband had an evidentiary obligation to establish that s 79A(1)(a) was engaged and had not done so. In plain English, the Court considered the material he put forward insufficient to establish the statutory ground.

What fact patterns trigger this precedent

The judgment is most directly relevant to two kinds of application.

The first is a recusal application where the asserted basis is that a judge previously heard about a related matter, or where the applicant simply believes the judge will not be impartial. The decision illustrates the need to identify the relevant matter, explain its connection to the decision to be made, and address the timing of the objection. It does not say that every delayed objection is necessarily waived. It applied the cited promptness principle to the circumstances described in this case (paras 18–22).

The second is an application to set aside consent property orders based on a claimed miscarriage of justice. The decision is relevant where a party relies on dissatisfaction with the agreed division, a claim that the orders do not reflect contributions, or an asserted agreement that was mentioned during the earlier proceedings. The judgment indicates that those matters, without evidence establishing a statutory ground, did not suffice on the facts before Foster J (paras 34–40).

The decision should not be read as saying that consent orders can never be reopened. It expressly records authorities recognising that circumstances such as duress, ignorance or incompetent advice may be relevant, and it sets out the statutory grounds in s 79A(1). Whether a different case meets those grounds depends on its evidence and circumstances, issues not decided here.

How later courts have treated it

The supplied judgment gives no account of later decisions citing or applying Akhtar & Gaber [2020] FamCA 298. It is therefore not possible, from this source alone, to describe how later courts have treated this decision or whether they have followed, distinguished or qualified it.

The judgment itself cites earlier authorities, but those citations show the sources Foster J relied on, not later treatment of Akhtar & Gaber. The recusal analysis refers to Sellers & Burns, Smits v Roach and Michael Wilson & Partners Ltd v Nicholls (paras 14, 18–20). The s 79A discussion refers to Holland & Holland, Gebert & Gebert, Smith & Smith and Suiker & Suiker (paras 29–33). The judgment also refers to an earlier decision in the same matter, Akhtar & Gaber [2018] FamCA 1043 (para 6).

Still-open questions

The judgment does not finally determine the legal status or effect of the purported Country B marriage or financial agreement. It states that the agreement's asserted existence did not, by itself, oust the Court's property jurisdiction, and refers to a binding financial agreement under Australian law as relevant to that question (para 17). The 2020 reasons do not undertake a separate, comprehensive determination of the agreement's validity.

The judgment also does not decide what evidence would have been sufficient to establish another circumstance under s 79A(1)(a) in a different case. It states that the relevant circumstance must have existed at or before the order and that the husband had not established a miscarriage of justice on the evidence presented (paras 26, 38). The possible significance of evidence of duress, ignorance, incompetent advice, suppression or another statutory ground remains dependent on the facts and evidence of a particular case.

Finally, while the judgment treats delay as one reason for dismissing recusal, it does not set out a complete account of how promptness or waiver would apply in all circumstances. It applies the cited authorities to the husband's delay and the history of these proceedings (paras 18–22). Costs were also unresolved at the end of the judgment, with submissions directed and the costs decision reserved.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.

Judgment (41 paragraphs)

[1]

the applicant has the sole legal and equitable interest in the Suburb E property to the exclusion of any claims, right title or interest by the respondent;
the parties should stop any court proceedings in relation to the financial matter in s 79 of the Act;

[2]

j) the applicant demands cost of the litigation of $85,000; and

[3]

the applicant demands the handover of the Suburb E property within three months of the date of court hearing.

[4]

On 16 April 2019 the Court made further orders and directions in respect to the husband's Initiating Application as follows:

[5]

(1) The Initiating Application filed by the husband be considered for the purposes of the application, an application to set aside orders of this Court made 17 August 2017 pursuant to the provisions of s 79A pursuant to Family Law Act 1975.

[6]

(2) The husband by no later than 30 April 2019 file and serve an Amended Application setting out with particularity the orders sought by him under s 79A with particular reference to the provisions of that section upon which he relies.

[7]

(3) In default of the husband complying with the previous order, his Initiating Application will be dismissed.

[8]

(4) Within one month of the husband filing his amended s 79A application as ordered, the wife shall file and serve a Response setting out orders sought by her in her Response.

[9]

(5) Any filing fee payable by the wife in respect of her Response be remitted.

[10]

(6) The affidavit of the husband filed on 11 January 2019 be struck out by reason of it being filed without leave of the Court.

[11]

On 24 April 2019 the husband filed what he purported to be an Amended Initiating Application in accordance with the Court's direction. The application seeks final orders identical to the orders sought in the Initiating Application filed 11 January 2019 and incorporated a meandering dissertation presumably in support of the orders sought by him.
Proceedings were listed for further judicial case management on 23 July 2019 and on that day trial directions were made so as to progress the husband's application to finality. The husband was ordered to file one consolidated affidavit of his evidence in chief and one affidavit from each of the witnesses relied upon with those affidavits to be filed no later than 27 September 2019. Proceedings were listed for a compliance check before a registrar on 21 November 2019 in anticipation of trial dates being allocated.
Subsequently, the husband's application came on for hearing on 13 February 2020. In the context of the very short hearing, the husband made application for the Court to recuse itself from further hearing the matter. The husband was invited to make oral submissions in support of his application for recusal.
Upon completion of the husband's oral submissions, the husband's application for recusal was dismissed with reasons to be published concurrently with reasons in respect of the primary matter.

[12]

The history of the matter is briefly set out above. The primary cause of action in relation to property adjustment was resolved by consent orders as referred to above. Otherwise, the parenting issues were resolved by final orders made on an undefended basis by Hogan J on 16 July 2018.
In summary, the husband's application for recusal appears to be based on the following contentions:

[13]

that the existence of a purported Country B financial agreement was brought to the attention of the Court on 16 May 2017 prior to final property orders being made by consent; 2. that it is the husband's belief that the Court will not bring an impartial mind to the resolution of the case; and

[14]

that there being no prospect of a fair trial his case was doomed to fail.
Regrettably, the husband did not further elucidate his grounds for recusal other than those bare propositions.
In Sellers & Burns [2019] FamCAFC 111 the Full Court succinctly said as follows:
1. To found a recusal it must be established that a "fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question" to be decided.
2. To satisfy that test, the applicant must first identify the matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue and, secondly the applicant must demonstrate a logical connection between the identified matter and the possibility that the judge might depart from impartial decision making.
The reality is that the asserted existence of some "agreement" in Country B is no bar to this Court exercising jurisdiction in respect to property. The only way that this Court's jurisdiction can be ousted is by way of a financial agreement binding on the parties under the provisions of the Family Law Act 1975.
Indeed, the parties resolved property by consent thus properly invoking this Court's jurisdiction.
As Kirby J said in Smits v Roach (2006) 227 CLR 423; [2006] HCA 36:

[15]

However, it is now settled law in this court that where a litigant, aware of circumstances providing a ground for objection on the basis of disqualification, fails to object promptly, that litigant will be taken to have waived the objection and cannot later rely on it. Obviously, this conclusion represents a practical approach, even if at the cost of some doctrinal purity...

[16]

It is clear that any objection to a judge's participation in a trial on the ground of disqualification for association must be made promptly, once the affected party becomes aware of the suggested cause of the disqualification.

[17]

In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, the High Court (Gummow ACJ, Crennan and Bell JJ) said at [76]:

[18]

It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. (It may well be that the principle extends to criminal proceedings but that issue need not be considered.) If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection.

[19]

The husband has inappropriately delayed in making the present application notwithstanding that the matter has been before the Court on a number of occasions. His application for recusal is to be dismissed.
The husband has, otherwise, failed to discharge the obligation on him as to recusal in that he must first identify the matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue and, secondly the he must demonstrate a logical connection between the identified matter and the possibility that the judge might depart from impartial decision making. His failure to do so also sees his application for recusal fail. His application for recusal is dismissed.

[20]

The s 79A Application

[21]

Section 79A of the Act relevantly provides:

[22]

(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

[23]

(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or

[24]

(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or

[25]

(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or

[26]

(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or

[27]

(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;

[28]

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

[29]

It is readily apparent that the husband relies on s 79A(1)(a).
Section 79A(1)(a) provides that where the Court is satisfied that there has been a miscarriage of justice by reason of fraud, duress, the suppression of evidence, the giving of false evidence or any other circumstance, the Court may, in its discretion, vary the order or set the order aside and, if it considers it appropriate, make another order in substitution thereof.
The present primary application before the Court relies upon the term "any other circumstance". Such circumstances must be those circumstances that existed at the time of the Order or before the Order was made.
The husband relied on his affidavit filed 16 September 2019 in support of his application.
The wife relied on her Response to the husband's Initiating Application and simply sought an order for its dismissal.
In Holland & Holland [1982] FamCA 31; (1982) FLC 91-243 the Full Court said at 77,341:

[30]

... To succeed in an application under sec. 79A, the wife must show some circumstance leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party's entitlements under sec. 79 does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice.

[31]

In Gebert & Gebert (1990) FLC 92-137 the Full Court said at 77,935:

[32]

... there may be circumstances where the order is so unreasonable as to give rise to an inference that some matter has affected the party's reasoning, which would vitiate the order. On the other hand, we think that it must be appreciated, as the Full Court said, that the fact alone of an apparently unreasonable order does not necessarily lead to such a conclusion. If the order is apparently unreasonable and there is no rational explanation of it having been agreed upon, then the inference referred to by the Full Court may be capable of being drawn. On the other hand there may be quite rational explanations for an order having been made. There may be many situations where a party acting perfectly rationally, for reasons of his or her own, is prepared to make a more substantial allowance to the other spouse than would normally be the case. Indeed, there may be some cases where a party will voluntarily concede the whole of the matrimonial property to the spouse.

[33]

In Smith & Smith (1984) FLC 91-152, the Full Court said at 79,164:

[34]

Where a Court is asked to make consent orders under sec. 79 of the [Act], it is not required to examine the terms of the agreement made by the parties and to be satisfied that its provisions as to financial matters are proper ... Courts will usually permit parties to make their own agreements.

[35]

Where parties consent to an order, particularly when legally represented, they are to be taken as having given full and proper consideration to all the matters which lead up to the request to the Court to make an order by consent. That fact alone should, therefore, in the vast majority of cases, be sufficient to satisfy the Court that the order sought is just and equitable.

[36]

... To allow parties to resile from such agreements at a later stage would introduce considerable uncertainty into an area in which certainty is the best protection a Court can give to litigants...

[37]

The Full Court in Suiker & Suiker (1993) FLC 92-436 at 80,471 said "(t)he consent to the order is itself part of the judicial process on which the Court places reliance".

[38]

The husband's affidavit is succinct. It asserts:

[39]

please see attached annexures A - B; 2. recognition of Country B marriage and financial agreement;

[40]

enforcement of s 90KA, s 71A oust allegation in s 79; 2. return of the property at D Street, Suburb E NSW ; 3. the Court has no jurisdiction to be involved in property settlement; 4. the respondent must bear the cost of proceeding; and 5. return of Suburb E property within three months.
The Annexure A to the husband's affidavit comprises meandering submissions going to the nature of the primary consent orders made in 2017. The applicant seems to contend that the consent orders that were made do not properly reflect contributions during the parties' relationship with such contention being estopped by reason of the consent orders themselves being made at a time when both parties were legally represented.
Otherwise, the applicant again raises the issue of an Country B marriage agreement arising from the marriage of the parties in Country B in ... 2003 that has been referred to above with submissions as to the efficacy of that agreement as between the parties. Such contention is ignore the reality that the Country B marriage agreement referred to does not oust the jurisdiction of this Court to deal with the property of the parties.
Otherwise, Annexure B to the husband's affidavit comprises the transcript of proceedings before this Court on 16 May 2017 when proceedings were before the Court for case management directions. The husband, during the course of that Court event, raised with the Court the issue of the Country B marriage agreement. The husband was informed by the Court that "there is no binding financial agreement under our law".
The husband has the evidentiary obligation to adduce evidence to satisfy the Court that the provisions of s 79A(1)(a) are enlivened in that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.

[41]

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 April 2020.