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Procedure – Trial judge erred in refusing to recuse himself – Reasonable apprehension of bias where Court had considered but rejected proposed consent orders that included a balance sheet and an agreed percentage

In Henley & Bestari [2024] FedCFamC1A 12 (21 February 2024) the Full Court (McClelland DCJ, Tree & Williams JJ) heard an appeal against the dismissal of the appellant’s application for an order that Gill J recuse himself.

The parties reached agreement as to parenting matters on the first day of trial and final orders were made that day. Further discussions on days two and three led to agreed property adjustment terms being handed up to the Court, which were rejected as, while there was an agreed percentage, the terms required valuations to be carried out and future steps. The Court rejected the terms as the overall proposed settlement had essentially been delegated to third parties/experts.

When adjourning the trial, the husband sought orders that Gill J recuse himself from any further involvement in the matter, where the Court had been exposed to the agreed percentage. The Court dismissed that application, where the terms were inadmissible under s 131 of the Evidence Act and because the Court was not satisfied that a fair-minded lay observer might reasonably apprehend that the Court would not bring an impartial mind to the property dispute.

The husband appealed.

After observing that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the issue to be decided per Ebner v Official Trustee in Bankruptcy [2000] HCA 63, the Full Court said (from [25]):

“The application of the apprehension of bias principle involves a two-step analysis. First, the identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits, and second, the articulation of a logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]). Per Ebner, once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

( … )

[27] In this case, the relevant category of disqualification in the first step of the requisite analysis of apprehended bias, is knowledge of extraneous information. That is, the primary judge’s knowledge of the proposed settlement, both as to variation of the formally asserted percentage divisions which both parties asserted would constitute a just and equitable division of their property, and the balance sheet together with the proposed in specie distribution of the assets. In his reasons, the primary judge correctly identified … his exposure to the parties attempted terms of settlement of the property proceedings.

[28] As to the second step and the reasonableness of the asserted apprehension of bias, senior counsel for the appellant helpfully referred to five propositions relevant to the nature of the inquiry, which can be extracted from the authorities.

[29] First, the inquiry is objective (Johnson v Johnson [2000] HCA 48 … at [12] (‘Johnson’)) and does not require a conclusion about the judge’s actual state of mind (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 … ), secondly, all circumstances must be considered (Re JRL; Ex parte CJL [1986] HCA 39 … at 371 … ), thirdly, the criterion is concerned with ‘possibility (real and not remote), not probability’ (Ebner at [7]), fourthly, the apprehension is from the perspective of a fair-minded observer, meaning ‘it is the court’s view of the public’s view, not the court’s own view’ that is determinative … and lastly, the qualities and attributes of the fair-minded observer must be taken into consideration.

[30] These qualities and attributes include; 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 … Likewise, the person being observed is a professional judge whose training, tradition and oath or affirmation require them to discard the irrelevant, the immaterial and the prejudicial …

[31] Although the primary judge correctly recognised the factor or circumstance that might lead a decision maker to decide a case other than on its legal and factual merits, the appellant contended in the appeal that his Honour, albeit without the assistance of proper submissions, failed to undertake the second step of the requisite analysis. That submission, with respect, has merit.

[32] The primary judge … referred to Silva & Phoenix [2018] FamCAFC 41 … (‘Silva’) where it had been determined that the trial judge’s knowledge of the parties’ proposed terms of settlement precluded the judge from continuing to hear the matter. However, his Honour distinguished the facts of Silva from this case. In Silva, the trial judge had expressed a view that the proposed percentage division was not appropriate, whereas in the present case, his Honour did not express a view one way or the other. Whilst his Honour’s analysis was correct, and it is a relevant consideration, that exercise did not resolve the application of the second step of the test or the issue of apprehended bias.

[33] We now turn to the second step, namely the logical connection between exposure to the terms of the proposed settlement and the objective apprehension the primary judge might not determine the property application on its merits …

( … )

[38] … [T]he primary judge was well aware of both the appellant’s formal position, the compromised percentage division, the significant asset pool and what the compromise actually represented in monetary terms to each party. We accept the compromise was a material and substantial deviation from the appellant’s stated position.

[39] … It would be forensically embarrassing for the appellant to contend at trial the settlement previously agreed and presented for approval, would not be just and equitable. We agree with that submission, in particular because of the significant monetary value of the appellant’s compromise and departure from his former position before the Court, it would be untenable for counsel for the appellant to contend at a subsequent trial, that his client’s formal position would be just and equitable and the compromised position would not be.

[40] … [T]he proposed terms of settlement were not akin to ordinary evidence, which could be disregarded by the primary judge.

( … )

[42] … The primary judge’s prolonged exposure to and familiarity with the proposed property settlement orders and the exchanges with counsel over two consecutive days are not analogous to a judge disregarding an objectionable piece of evidence …

( … )

[45] We agree with and accept the submissions of senior counsel for the appellant that there is a logical connection between the exposure to the terms of settlement and the objective apprehension. From the perspective of the fair-minded lay observer, knowledge of the proposed settlement orders and balance sheet over two days might, at the least, subconsciously affect both the primary judge’s future assessment of the evidence and his Honour’s ability to carry out the discretionary evaluative exercise required under s 79 of the Act, to determine adjustments of property.”

The appeal was allowed and the matter remitted to a judge other than Gill J. A costs certificate was granted to the husband.


Our latest notable cases this month also include summaries of cases that involve the following:

Children – Order that mother own and reside in an Australian property as condition precedent to her travelling internationally with the child was ultra vires

Children – Order for unsupervised father’s time was made without procedural fairness where each party accepted that the father should attend anger management courses but no such order was made

Children – Court lacks jurisdiction to make orders that a therapy animal (a pet dog) accompany child during father’s time – Father’s application for equal shared parental responsibility dismissed as Rice & Asplund not satisfied

Financial agreements – Supreme Court of New South Wales enforces a “Binding Terms Sheet” signed to implement the parties’ financial agreement

Children – Single expert in her Child Impact Report relied on a family violence screening tool that indicated a “very high risk of lethality” in the “serious threat” category – Interim orders for supervised time upheld upon review, notwithstanding expressed wishes of 13 year old child to live with her father

Property – Single expert occupational physician appointed to report on de facto wife’s medical condition and its impact on her prospects of employment