Charisteas v Charisteas [2021] HCA 29. Illustration by Mubin Ul Haider

Charisteas v Charisteas [2021] HCA 29 : Illustration by Mubin Ul Haider

The following hypothetical analysis by Mubin Ul Haider is based on the analysis of the Charisteas v Charisteas [2021] which was a High Court of Australia decision on a property settlement under the Family Law Act 1975 (Cth).

In the matter between Charisteas v Z. V. Charisteas , a dispute was brought before the Family Court of Western Australia in 2006 by Mr. Charisteas (also known as “Appellant” in this case) regarding a property settlement under s79 of the Family Law Act 1975 (Cth) (the Act) . In 2011 the Court made a Property Settlement Order which included an Early Vesting of an identified trust that required a payment of $338,000 to Appellant’s mother who was the general beneficiary of the trust. However, this order was set aside in 2013 by the Court on the basis of procedural fairness, and there was no further order to resolve this issue but by way of a further rehearing. In 2015, Court retained the power to make a Property Order under s79 of the Family Law Act 1975 (Cth) (the Act) , therefore, making the initial order made in 2011 as not the Final Order. In 2016 the Trial Judge set a trial date for the matter to be heard again where both parties made submissions on the property settlement.

In 2018 the Trial Judge delivered a judgement on the Final Order under the Act. Upon revelation by the husband’s solicitor and disclosure from wife’s barrister, it was discovered that there were numerous contacts outside of court between the Trial Judge and wife’s barrister from 2016 to 2018. This lead to a Recusal Application made by the additional parties (which the Appellant supported) on the ground of apprehended bias. The application was rejected in the first instance and later appealed by the additional parties (Corporate Trustee). The Appeal was rejected by the Full Court of the Family Court of Australia, and it was later again appealed to the High Court of Australia with additional grounds.

In 2011 the Family Court of Western Australia made a Property Settlement Order under s79 of the Family Law Act 1975 (Cth) (the Act). In the order the court divided the net assets (excluding superannuation) between parties, 38% to the wife as to 62% to husband which includes sale of the matrimonial property and disbursement of the sale proceeds, transfer of shares and a payment of $338,000 to Appellant’s mother who was the general beneficiary of the trust.

However, in 2013 the Full Court of the Family Court of Australia set aside the Early Vesting Order of The Trust on the basis that the Appellant’s mother was denied the procedural fairness. In addition to this, the Full Court of the Family Court of Australia did not make any further consequential order to remitting this issue for a further rehearing. The parties could not come into agreement as to what’s then to happen.

In 2015 an Interlocutory Judgement was made by the Family Court of Western Australia that the 2011 Property Order was not the Final Order, and the Court retained the power to make Property Order under s79 of the Family Law Act 1975 (Cth) (the Act) .

In 2016, the Trial Judge of the Family Court of Western Australia listed the trial for what the property settlement should be and be heard before His Honour. Both parties provided evidence, oral and written submission prior to the final judgement. The additional parties made the First

Recusal Application for the trial judge to recuse himself on the ground of apprehended bias. The wife and the children oppose the First Recusal Application. The Trial Judge heard and dismissed the First Recusal Application. The corporate trustee of the trust and the Appellant’s mother appeal the judgement which again dismissed by the Full Court of the Family Court of Australia.

In 2018, the Trial Judge made a judgement under s79 of the Family Law Act 1975 (Cth) (the Act) . However, the 2018 Property Orders did not set aside the Property Orders originally made in 2011 but it was inconsistent with the 2011 Property Order. The Appellant appealed against the 2018 Property Order to the Full Court of the Family Court of Australia.

A written communication from the Appellant’s solicitors to the wife’s barrister reveals that there was numerous meetups outside of court, text messages and phone calls between the Trial Judge and the wife’s barrister in 2016 to 2018. The wife’s barrister confirms this in writing however denies discussing the case with the Trial Judge. The Appellant amended the notice of appeal adding additional grounds and evidence alleging apprehension of bias and appealed to the Full Court of the Family Court of Australia against the 2018 Property Orders where the appealed was dismissed. He further appealed the matter to the High Court of Australia
The appellant appeal this matter to the High Court of Australia where the final judgement was made on the following grounds:

Whether the 2018 Property Orders should be set aside on the basis of reasonable apprehension bias as a result of the private communication between the Trial Judge and wife’s barrister.
Whether the Trial Judge has the power under s79 of the Act to make the 2018 Property Order when a property order has already been made by the same Judge in 2011.

Based on the principle of apprehension of bias a judge must be independent and impartial with any reasonable doubt and fair minded when delivering his decision. In this case the high court finding are the private communication between the Trail judge and the wife’s barrister without the knowledge and consent of the Appellants solicitor is a clear absent of the judicial and professional norms and conducts.

There are two issues to be decided in this case firstly the apprehended bias came from the revelation of numerous communication between the Trial Judge and the wife’s Barrister outside court from 2016 to 2018 and secondly to determine whether the Family Court of Western Australia has the power to make orders pursuant to s79 of the act of the Family Law Act 1975 (Cth) (the Act) which expected that the power being exhausted with the original Property Order made in 2011.
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