Acheson & Begbie

The Federal Circuit and Family Court of Australia dismissed an application for disqualification made by Mr Acheson during contested final parenting proceedings. The applicant's counsel sought the adjournment of the matter to prepare an application for disqualification and later made an oral application for the judge to recuse herself. The basis of the application was that the applicant had formed the view that the judge had developed a position adverse to his interests in the litigation. The application was dismissed and the judge found that there were no substantial grounds for disqualification.The court considered whether the application was made in reliance upon an assertion of apprehended bias, actual bias or prejudgment. The court found that the case advanced on behalf of the father appeared to be one of apprehended bias. The court considered whether there were matters which might impact on the judge's decision and found that the applicant had raised the following issues: (a) whether the judge should have intervened in the cross-examination conducted on behalf of the respondent; (b) whether the judge's questions to the applicant were an impermissible foray into the proceedings; (c) whether the judge's body language indicated a view of the applicant or his counsel; (d) whether a ruling in respect of the permissibility of questions in re-examination was improper; and (e) whether counsel for the applicant was treated differently from the other counsel at the bar table.The court found that the cross-examination was not improper and that the applicant's counsel did not object to the questions. The court found that the questions put by the judge to the witness were appropriate and not excessive or unfair. The court found that the perceived eye-roll in context would not result in a fair-minded lay observer apprehending bias from the bench. The court found that rulings on legal points adverse to the applicant were natural elements of adversarial litigation and did not without more connote bias. The court found that all interactions with each of the barristers were undertaken professionally and courteously and that there was no evidentiary basis for the submission that counsel for the applicant was treated differently. The court found that the applicant had not established substantial grounds for disqualification and dismissed the application.