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Case Study : Silva & Phoenix, Disqualification of Primary Judge in Family Court for Bias, Refusal to make consent orders.

Case Study : Silva & Phoenix [2018] FamCAFC 41 (7 March 2018)


December 2015 the wife instituted property proceedings in the Federal Circuit Court of Australia seeking interim and final property settlement orders, in July 2016 an order was made appointing the husband’s father as the husband’s litigation guardian and by January 2017 the husband filed an Amended Response to the wife’s Initiating Application, seeking, inter alia, an order that the wife’s application for an alteration of interests in property pursuant to s 79(1) of the Family Law Act 1975 (Cth) (“the Act”) be dismissed on the grounds that it is not just and equitable to make an order as required by s 79(2) of the Act.

In response in February 2017 the wife filed an Amended Initiating Application seeking, inter alia, “a split of the total matrimonial assets being 20% to the Wife and 80% to the Husband”, and an equal adjustment of the parties’ superannuation interests.

The trial was listed to commence on 18 April 2017, but on 11 April 2017 the parties submitted to the chambers of the primary judge, a signed Minute of Final Consent Orders.

The Minute provided for the husband to pay to the wife the sum of $30,000, representing approximately 10 per cent of the value of the asset pool.

On 12 April 2017, following a request from the primary judge, the parties submitted a statement of agreed facts.

Subsequently the primary judge listed the matter for mention before him on 21 April 2017.

At that mention each party was represented by their respective solicitors who made submissions in support of the Minute of Final Consent Orders. However, his Honour was not prepared to make the orders, and he listed the matter for a defended hearing before him commencing on 25 September 2017.

On 9 May 2017 the husband filed an Application in a Case seeking, inter alia, that the primary judge disqualify himself from further hearing the proceedings, and that the matter be listed before a judge other than the primary judge.

That application was heard by the primary judge on 23 June 2017, and on 27 June 2017 his Honour made an order dismissing the application.

This case is an appeal where the primary judge was asked by the parties to make , upon this application the primary judge had to be satisfied on the material before him that it was just and equitable to make the consent orders as sought.

The primary judge refused to make the consent orders finding the proposed compromise to be “manifestly inadequate” and set the matter down for hearing before him!


Where the test is whether “a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide”.

The High Court in Johnson v Johnson (2000) 201 CLR 488 resulted in the principle (which was confirmed in Ebner) that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias, is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. I note also that in the case of Johnson, the High Court said this, at 493:

"The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”."


The test is satisfied here, the primary judge’s knowledge of the compromise the appellant was prepared to make for the purposes of the consent orders would be taken into account by a lay observer as apprehending that the primary judge may not bring an impartial mind to the subsequent hearing.

Where the primary judge found definitively that there should be an alteration of the parties’ interest in property of greater than 10 per cent in favour of the respondent and this demonstrates the primary judge prejudged the issue in dispute with apprehended bias.

Judge A Kelly be disqualified from further hearing the property settlement applications between the parties.

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Comments (2)
  • Miranda is there a list out there of what sort of specific things can be appealed about? eg a list of common errors of law that judges make so applicants in an appeal know how to word what they are saying the judge made an error about?

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    • Hi Dragonfly,

      For an appeal to be successful, you must convince the Family Court judge that the Federal Circuit Court judge made an error, this is outlined at FamilyCourt.gov.au

      The judge:

      • Does not consider any evidence or information that was not before the Federal Circuit Court judge, except in special circumstances
      • Does not hear witnesses giving oral evidence
      • Reads all the relevant documents that were filed by the parties for the original hearing before the Federal Circuit Court judge and the relevant parts of the transcript of the proceedings
      • Takes into account the written summaries of argument, and
      • Listens to legal argument from both sides.

      As the appellant, you need to convince the Family Court judge that the Federal Circuit Court judge made an error such that the decision should be set aside.

      In order to do this you must persuade the Family Court judge that the Federal Circuit Court judge:

      • applied a wrong principle of law, or
      • made a finding of fact or facts on an important issue which could not be supported by the evidence, or
      • exercised his or her discretion to arrive at a decision which was clearly wrong.

      A finding of fact is, for example:

      • a finding that a certain event did or did not occur
      • that something was said or not said, or
      • that something has a certain value (for example, your house).

      A Federal Circuit Court judge exercises discretion when the result of the case does not depend on a fixed rule, but where the Federal Circuit Court judge has to weigh up a number of different factors, all of which are of some relevance to his or her decision. To succeed on appeal, it is not enough for you to show that another judge might have formed a different view on the facts or decided the case differently.

      For example:

      • In a financial case, there is a margin within which the Court has a range of decisions open to it; all of which will be legally valid or acceptable.
      • In a parenting case, matters may be so finely balanced between the parties that the judge could decide in favour of either party, without being in error in a legal sense.

      If the Federal Circuit Court judge accepted the evidence of one party in preference to that of the other party, the Family Court judge will be reluctant to take a different view because, unlike the Federal Circuit Court judge, he or she does not see and hear the parties or their witnesses giving evidence.

      The best way to understand errors in law that Judges have previously made is to read case law, you can use legal databases such as Austlii to locate them.

      This case may be helpful in demonstrating how to set out grounds of appeal from the Judges error in decision, in Matenson & Matenson (2018) the father made written submissions as well as oral submissions to make clear his central contention, Murphy J identified  'that his case was not in fact heard or determined.  In addition, he remains entirely unclear why her Honour ordered that “all interim applications be dismissed”. Expressed in more familiar language, it is asserted that her Honour’s reasons are manifestly inadequate.’ [Para 14]

      Held: 'With respect, her Honour did not at all engage with the issues presented to her for interim determination and provided no reasons for her decision.  The appeal must succeed.'


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