In the event of apprehended bias by the ongoing involvement of a judicial officer, a party may seek that the judicial officer (most commonly a judge) recuse themselves of any further involvement in the proceedings. The failure of a judge to recuse themselves may lead to judicial error that forms grounds for an appeal.
In the decision Johnson v Johnson [2000] HCA 48, the Court found that the test to be adopted in determining the existence of judicial prejudice or apprehended bias was “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.”
This test is objective to ensure that the public can have confidence in the outcomes of litigation. In the decision of Henley & Bestari [2024] FedCFamC1A 12, the Court emphasised the need for the “fair-minded lay observer” to be reasonable in their assessment of the existence of bias or impartiality, noting the test requires “an observer who is neither complacent nor unduly sensitive or suspicious, who is also taken to be reasonable, is all too aware of the reality that the judge is human, is not conceived of as a lawyer but a member of the public served by the courts and is not to be assumed to have a detailed knowledge of the law, or the character or ability of a particular judge.”
What circumstances may give rise to a recusal application?
In the case of Silva & Phoenix [2018] FamCAFC 41, the trial judge was exposed to proposed final consent orders. The trial judge declined to make those Orders on the basis that they were not satisfied that the outcome was just and equitable. The Court found that having been privy to the parties’ in principle agreement which deviated from their respective applications, the trial judge should have recused himself.
In the similar case of Henley & Bestari [2024], the trial judge declined to make orders by consent agreed upon by the parties, due to his concern that the effect of the Orders was so unclear as to prevent the Court from determining whether the outcome was just and equitable. His Honour refused a recusal application after having received into evidence draft orders, a balance sheet and submissions addressing why the outcome of the agreement was just and equitable. On appeal, the Court found that having knowledge of the in-principle agreement and balance sheet may reasonably impact the trial judge’s ability to determine the matter impartially.
In the case of Charisteas v Charisteas [2021] HCA 29, the Court found that the social interactions between Counsel for the Wife and the judge throughout a two week trial, including an exchange of text messages during the course of the trial, would cause a lay observer to form the view that the judge was not able to impartiality determine the outcome of the matter.
If this issue has arisen in your matter, or you are concerned that a judicial officer is not acting impartially, you should seek specialist family law advice. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Margot McCabe