Case notes

Property – order set aside for denial of procedural fairness – unwarranted judicial interventions

Finch [2020] FamCAFC 60 (20 March 2020)

23 June 2020

In Finch [2020] FamCAFC 60 (20 March 2020) the Full Court (Ryan, Aldridge & Tree JJ) allowed the wife’s appeal of a property order of the Federal Circuit Court.

Her case was that excessive judicial intervention during the hearing denied her a fair trial. The Full Court agreed, at [14] eliciting Galea v Galea (1990) 19 NSWLR 263 at 281-282 the following relevant legal principles:

“1. The test…is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. (…)

3. …whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and ‘into the perils of self-persuasion’. (…)

4. (…) It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion (…)”

The Full Court said ([24]-[25]):
“…[I]f one deducts the 35 minutes which the impugned interventions took from the length of the cross-examination of one hour and 59 minutes, there was a total of no more than 84 minutes of cross-examination, but it was interrupted by impugned interventions 45 times, thereby meaning that counsel, on average, was interrupted nearly every two minutes. (…)

[25] …Counsel for the wife was significantly impeded in conducting his cross-examination…”

In setting the order aside and remitting the case for rehearing, the Full Court said (from [59]):

“…[W]e conclude that [the] frequent… interventions were…wholly unwarranted, unduly personalised, demonstrated an unfortunate entry by the primary judge into the arena, and did not adequately undo the consequences of the very forceful initial expression of a ‘preliminary view’ by the primary judge. (…)

[66] (…) There is a real danger that the trial was therefore unfair, and hence miscarried.”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).